Let’s pledge to boost women in adjudication

Earlier this year, the Adjudication Society launched the Equal Representation in Adjudication Pledge and Women in Adjudication, and there has been much tangible interest in both. Here I will explain the initiatives, including the opportunities they offer to those involved with statutory adjudication, and will also consider the challenges they face.

Statutory adjudication is of fundamental importance to construction; in practical terms it is very often the final dispute resolution mechanism. As Lord Justice Coulson commented in John Doyle Construction Ltd vs Erith Contractors Ltd [2021] EWCA Civ 1452, “I rather cavil at the suggestion that construction adjudication is somehow ‘just a part of ADR’. In my view, that damns it with faint praise. In reality, it is the only system of compulsory dispute resolution of which I am aware which requires a decision by a specialist professional within 28 days, backed up by a specialist court enforcement scheme which (subject to jurisdiction and natural justice issues only) provides a judgment within weeks thereafter. It is not an alternative to anything; for most construction disputes, it is the only game in town.” My sense is that no one would disagree with Lord Justice Coulson’s analysis.

So, what is the provenance of the Equal Representation in Adjudication Pledge and what is it meant to achieve? Readers may recall that the Centre of Construction Law & Dispute Resolution at King’s College London, in collaboration with the Adjudication Society, last year produced a report titled 2022 Construction Adjudication in the UK: Tracing Trends and Guiding Reform. The report found that less than 8% of adjudicators in the UK are women. The Adjudication Society wants to improve this statistic and apprehends that the pledge (like that used successfully in international arbitration) will highlight this specific problem and help ensure that all those involved with adjudication consider nominating, shortlisting or agreeing a female adjudicator.

By embracing a fuller array of expertise, experience, decision-making and talent, adjudication will naturally improve

Support for the pledge from across the construction industry (as evidenced by signing it) is vital. The pledge on its own, however, will not be enough, which is why the Adjudication Society has also set up Women in Adjudication. This umbrella group is tasked with the promotion of women in adjudication, training, working with the various adjudicator nominating bodies and collecting further qualitative data to better assess why female participation is currently so low.

Opportunities and the benefits for all stakeholders in statutory adjudication (whether employers, main contractors, subcontractors, professional consultants, adjudicators, lawyers, or adjudicator nominating bodies) are clear. Put shortly, by embracing a fuller array of expertise, experience, decision-making and talent, adjudication as the “only game in town” will naturally improve. There is also a considered view that so-called “group think” among a stagnant, longstanding pool of adjudicators would decrease.

Adjudication is in the process of change, and nominator bodies cannot be idle

There are challenges too, and the adjudicator nominating bodies hold a powerful position in addressing these. Party autonomy and the option of agreeing a female adjudicator are important, but the fact that the vast majority of adjudications involve selection by adjudicator nominator bodies tends to the conclusion that success for the Adjudication Society’s initiatives is contingent upon the nomination bodies now embracing the pledge and rethinking various aspects of their work.

Patently, adjudicator nominating bodies do not want to be left behind or deemed to be out of touch, but they will need to make seminal decisions relating to removing barriers to entry for female adjudicators. Adjudication is in the process of change, and nominator bodies cannot be idle. These bodies have options: they can increase the size of the panels and actively encourage female adjudicators; they can decrease the costs and time needed to join panels, by for example accepting a common professional qualification; they can increase transparency and publish data (to include, for example, information about how often certain adjudicators are selected); they can proactively offer the parties a choice where one adjudicator is male and the other female.

The Adjudication Society’s initiatives have attracted judicial applause and support. A number of entities and practitioners have already signed the pledge, and many female practitioners have joined Women in Adjudication and expressed a strong desire to sit as adjudicators. The launch of these initiatives marked a seminal point in the movement of change, and it is now for the wider industry to also support them. For more information and to sign the pledge please click here. 

Hamish Lal is a partner in Akin Gump Strauss Hauer & Feld