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A users view of adjudication and arbitration
Nigel Cornwell, Meeting 19 October 2004
The photograph shows Nigel being presented with a well-earned token of our thanks after his presentation by our Branch Chairman, Robin Orme.
Nigel is the head of construction law within the legal department of the UK construction division of Skanska. In this role he has had considerable experience of adjudication, ADR, and arbitration as a user of the processes.
Nigel started his talk by setting out his firm's experience of adjudication. At the time of his talk Skanska had been involved in approximately 80 adjudications of which only 1 had been taken any further following the adjudicator's decision. It was therefore apparent that most parties were now treating adjudication as final as well as binding. He summarised the benefits of adjudication as being speed, economy and having a binding decision. Against the process were the risks of ambush, rough justice and enforcement. On balance he was a strong supporter of the process, which he considered, in general terms, served the industry very well.
Nigel also mentioned that his firm had been involved in 10 mediations of which 9 had been successful in achieving a resolution of the dispute. Again he felt that if the circumstances were right mediation could be a success as long as both parties wanted it to succeed.
He commented on the tight timescales of both of these processes, making the point that he did not consider it to be a cause for concern. As a matter of policy he would agree to whatever time was appropriate and necessary to suit the needs of each case. Of the 90 adjudications and mediations 30 had been completed in 28 days, 50 in 42 days and the remainder in excess of 42 days but not excessively so. This emphasised the benefit of speed.
Nigel then turned his attention to arbitration and summarised the reasons to arbitrate as confidentiality, choice, flexibility, fair hearing and finality. It was his view that it was essential to the arbitration process that the arbitrator retained firm control of the proceedings. In addition it was also important, in the interests of time, cost and efficiency, that the parties notified the arbitrator of the advanced reading that was necessary before the hearing, He went on to highlight the key powers under the arbitration act including the ability of the arbitrator to rule on his own jurisdiction which he felt was a shortcoming in adjudication.
Report by: Harvey Mason