Who can become a construction adjudicator?

Adjudication is the UK construction sector’s dispute resolution method of choice for several reasons:

• It is quick – an adjudicator must normally issue a decision within 28 days of being seized with the dispute.
• It is comparatively simple - the procedure from start to finish is prescribed in law in straightforward and plain language.
• It is cost-effective - the relative speed and simplicity of the process renders it significantly cheaper than lengthy litigation or arbitration.
• It is private- unlike the courts, what happens in adjudication remains confidential between the parties, and decisions are not published.

The person who adjudicates a dispute is someone agreed by the parties or as often happens, someone nominated by an independent Adjudicator Nominating Body (ANB). The process by which different ANB’s nominate adjudicators vary. Most utilise a system whereby adjudicators are sourced from a panel, and only those on the ANB’s panel will be nominated.

The rationale is that an ANB will have recruited, possibly trained, and most likely assessed/interviewed the adjudicators on its panel. It will, therefore, know and have confidence that the adjudicators it appoints are qualified and equipped to discharge the role.

Parties to disputes will often desire adjudicators with core skills and knowledge of the relevant subject matter. They want adjudicators who can understand and deal with technical questions, which are pertinent to the issues in dispute. So, whilst anyone can become a construction adjudicator, the reality is that most adjudicators appointed by ANB, are qualified construction professionals drawn from surveying, legal, architectural and engineering backgrounds.

Adjudicators need to be trained and qualified specifically in discharging the role of adjudicator. An appropriate understanding of applicable law and procedure, and the ability to practically apply oneself as an adjudicator are imperatives. This is because adjudication is a quasi-judicial role, which results in binding decisions that can have significant consequences for individuals and businesses caught up in disputes.

It follows that a key step on the way to becoming a construction adjudicator is the need to undertake a training course. The level of training (and assessment required) varies from ANB to ANB. Some panels demand minimal training, e.g. 1- or 2-days tutoring on the law and procedure. Some ANBs, particularly those which appoint the larger numbers of adjudicators, set the bar much higher.

Possibly the toughest ANB panel to get on to is the RICS panel. Aspiring adjudicators are currently required to complete an 18-month diploma in adjudication. This is a combined distance learning and face-to-face tutorial programme, which covers contract, tort, evidence and law applicable to adjudication practice and procedure, and decision writing.

The commitment, in terms of time and money, to getting qualified and onto an ANB panel varies, but it can be significant. At the same time. getting on to the RICS panel, even if you have achieved an RICS diploma in adjudication or equivalent qualification, can never be guaranteed. A question arises, therefore, as to why someone would want to train and qualify as an adjudicator, when there is so much uncertainty of opportunity?

A good starting point for replying to the question, is perhaps reiteration of the fact that, there are many benefits to being trained in adjudication law and practice. The diploma offers opportunities, not only to get onto the RICS panel but also, to get onto adjudicator panels managed by other nominating bodies. An example is the Chartered Institute of Arbitrators, which recognises the RICS diploma to the extent that successful candidates are entitled to apply for Fellowship of CIArb, without having to undertake further significant training and assessment.

Thirdly, parties are not obliged to use nominating bodies, such as RICS, and are free to choose who their adjudicator will be. Some parties name the person who will be their adjudicator in their contracts. Others may endeavour to agree the identity of their adjudicator when a dispute has arisen. In both cases, parties will want to be confident that their adjudicator is properly qualified and skilled. The RICS diploma signals that someone is trained and equipped to discharge the role of adjudicator. It thus gives graduates top quality credentials that will enable them to promote themselves as adjudicators in the wider market.

During periods when RICS is not recruiting new adjudicators to its main panel, it is increasingly possible for diploma graduates to obtain experience in doing real adjudications through various schemes which RICS has developed, and/or is developing. For example, RICS offers bespoke adjudication under the JCT Building Contract for Home/Owner Occupiers. There is also a scheme to resolve small building disputes arising between residential occupiers and traders endorsed by the consumer organisation, Which? These adjudication services offer newly qualified and able adjudicators an opportunity to practice the skills they have been taught and give them experience in readiness for more complex and higher valuer disputes they may be asked to adjudicate in the future.

RICS, along with a range of industry bodies who are members of the Construction Industry Council (CIC), is a supporter of the CIC, Low Value Disputes Model Adjudication Procedure (LVD MAP). This procedure is designed to enable adjudication to be used in a cost-effective way to determine disputes where issues are relatively straightforward and amounts of claim are less than £100,000. LVD MAP was launched in May 2020 and has proved immensely popular within hundreds of adjudications having been commenced. It enables adjudicators to use their powers under S.13 of the Scheme for Construction Contract Regulations to adopt a procedural timetable and evidential approach which is tailored to avoid unnecessary costs and achieve decisions on disputes within 28 days.

Adjudication as a method for determining construction disputes remains hugely popular in the UK. Over the past five years the numbers of adjudicators appointed by RICS has increased year on year. In 2023 around 1200 adjudicators were appointed by RICS, and the trend has continued upwards in 2024. The UK model has also been used as inspiration for the development of construction adjudication in other jurisdictions, notably Ireland, New Zealand, Australia and, most recently, Canada.

The continuing popularity of adjudication runs in parallel with increasing numbers of construction professionals who are keen to be adjudicators.

It is a role that requires specialist knowledge and practical ability, which is why training and qualifications are so important. Being trained and qualified is only part of the story. Just like passing a driving test, it is hands-on experience which will hone knowledge and skills acquired through training and makes a person a genuinely competent adjudicator.

Qualifications, like the RICS diploma, provide professionals with opportunities to market themselves and gain experience in adjudication, both as adjudicators and as party representatives. RICS will continue to work behind the scenes to also generate opportunities for trained adjudicators to get their hands dirty doing real-life adjudications by means of services tailored for industry clients.

Martin Burns

12 September 2024