Adjudication

The dispute resolution techniques that are described in JCT 98 include adjudication , arbitration and litigation . The courts may also need to bne called upon to enforce settlements that are reached by other methods . The parties may also decide to agree amongst themselves to use other alternative methods to settle their differences , such as alternative dispute resolution . This is considered towards the end of this chapter . It is claimed to be a non-adversarial technique , although its rise in popularity in the construction industry appears now to have waned in favour of more established techniques .

  Adjudication was first introduced into the UK in the mid 1970s . its application was restricted to disputes that occurred between the main contractor and the directly employed or domestic subcontractors . The process involved using an independent third party , an adjudicator , to help resolve a dispute that had arisen . The adjudicator could be appointed as part of the subcontract conditions , but invariably was only appointed after the dispute had occurred . The main advantage of using an adjudicator  was tghe rapid respone of the decision . The decision was binding , although as in all disagreements the parties had the right to take the dispute to a higher authority . Adjudication was subsequently introduced into the JCT form with contractor's design and more recently into JCT 98 /. This followed one of the principles of better practice recommended by the Latham Report .

  Adjudication is described in claused 41A of JCT 98 and this clause is discussed in Chapter 29 . The referral of sa dispute to an adjudicator must be made within 7 days ( caluse 41A2 ) and a decision must be given to the parties concertned , in writing , within 28 days ( clause 41A5 ) . The period for the decision can be extended for a further 14 days if the parties to the dispute agree . The adjudicator , like anyone in hearing disputes , must act impartially to determine the facts and law that are applicable to the dispute .
 The appendix to the form of contract seeks to identify who should nominate the adjudicator .
  Unless the parties agree to the contrary . this shall be the president or vice-president of the Royal Institutte of British Architects . As an alternative the adjudicator may be a president or vice-president of the RICS , the Construction Condeferation or the national Specialist Contractors Council . The adjudicator can be named in the contract in order to save time should a dispute occur . Whilst this is useful , the appointed adjudicator might not be suitable to review all disputes . The JCT adjudication agreement is a standard form that has been produced by JCT .

  Within seven days of the notice to refer a matter to adjudication , a referral document should be rpovided that incluides tha particulars of the disputes , a summary of the issues involved and the remedy and relief that the adjudicator should consider . The powers of the adjudicator are described in claused 41A5.5 as follows .

• Using the adjudicator's own knowledge and expertise
• opening up , reviewing and revising certificates , opinions , decisions or notices
• Requiring the parties to provide additional information
• Requiring the parties to carry out tests or open up work
• Visiting the site and workshops .
• Obtaining information from the employees of the parties concerned
• Obtaining information from other third parties .
• Determining the payment of any interest within the terms of the contract .

 The parties are normnally responsible for their own costs , but the adjudicator may direct that , in fairness , the unsucessful party can recover their costs from the successful party . There are , several identified advantages of using adjudication in prederence to other method of settling disuputes

• It seeks to eliminate conflicts as quickly as possible by resolving disputes as theyh arise .
• It is recognised that the adjudicator's decision will be provided in the fastest possible way .
• It is intended to be the least expensive process for settling disuputes , by reducing lawyers 's charges .
• It can act as a referral system , preceding arbitration : or litigation where the dispute is not resolved at this stage .
• it is anticipated that many disputes will be resolved and terminated at this stage , rather than proceeding towards more litigious action .

However , in practice the complexity that sometimes occurs with construction disputes cannot be dealt with effectively , and more rigorous methods of settlement may need to be employed .  Sometimes adjudication may simply be considered as a temporary solution to a problem . .