As one of the so-called “Founding” ―Fellows of the
Institute of Continuing Professional Development, there is more than a little
personal interest over how CPD can be utilised to extend the boundaries of
technical knowledge and application!
When at the South East Branch’s ―February CPD meeting in Reigate, why
would the following simple issue be so thought provoking? “Does a documents only trail adequately
detail the disputed issue?”
When a Chartered Engineer, from a Civil Engineering background, poses
the question “Should not a site inspection by the Adjudicator / Arbitrator be
undertaken to establish the situation on the ground at an early stage of the
process, particularly to establish if a design issue is involved?”?. That this Chartered Engineer, who is both an
experienced Member of the Chartered Institute of Arbitrators and a stalwart of
the Branch should raise this matter, brought a realisation that this whole line
of questioning puts a nagging doubt into perspective, as never before! Are the current Rules for ADR too inflexible
and in need of change?
Often in my experience, when a Practitioner, of whatever discipline gets
onto site, the observed reality is somewhat different to that portrayed in the
documentation. Would there be consensus
that the difference is usually down to the model layout / formatting of the
documents themselves and not necessarily any desire to mislead?
Who recalls the words of the Barrister delivering the Annual Masters
Lecture at the School of Law, Gray’s Inn, on behalf of the Worshipful Company
of Arbitrators? He ventured that
Arbitrators would be all the better for getting out on site and identifying /
locating the issue at an early stage of the proceedings. This is in order to verify the stated facts
of the dispute in pursuance of Section 34(2)(g) of the 1996 Arbitration Act.
Therefore, will Practitioners be justified in thinking that the process
of ADR is inexorably moving “off-site” into the Court Room?
Is it fair to imply that there is an apparent danger of the ADR process
becoming too judicatory? Is nurturing a
legal speciality preferable to retaining a simple dispute resolution process?
Whilst the 28-day limit (but not counting Official and Bank Holidays) is
an ideal platform for resolving 90% of disputes (as it stops disputes from
rolling on unnecessarily for months / years) is this definition too vague? Does it allow for the unfair practice of
delivering an unwanted Christmas present around 20 December? Should this rule be redefined as 28 working
days? Further, should not provision be
made for either an Arbitrator / Adjudicator to be able to declare that a
“design issue is involved”? and be able to invoke the pre-existing 13 / 17 week
time rule(s) to resolve such disputes, as previously practiced by Civil
Engineers?
Paradoxically, is there also an equation between, on the one hand
vocational needs in education being serviced by a documents-only regime at the
start of the process, without regard to the quality of the outcome? Yet on the other hand: Academia being obsessed with only getting
the “intake point right” and not being overly concerned with either the
educational development outcome as far as practitioners entering the vocational
based professions are concerned, nor with the lack of rigour in the
under-graduate science and technology “honours degree” courses!
Should the discernment for entry into vocational-based under-graduate
courses be limited to the ability displayed at secondary educational
level? The marketability of the Honours
graduate to the Professional Sector is their skill to apply innate capacity to
problem recognition and solution!
Ian
Patterson Wilson