Are we still playing nicely after lockdown? How the ICE helps contracting parties resolve their disputes.
Eighteen months and counting, the effect of Covid continues to affect all aspects of our lives.
Those working in the construction industry will have proudly seen how we supported the efforts to protect society and maintain economic activity. Predictably for those of us working in dispute resolution, we have seen a significant number of disputes stemming from lockdowns, social distancing in the workplace, and the stop-start nature of construction during 2020 and 2021.
Government money was used to support the industry with the aim that it would trickle down to support all levels of the supply chain. Furlough has also played its part. These funding streams were successful, if only in parts, but they are now drying up. We now see disputes, some provoked by insolvency, about responsibility for prolongation and the additional costs caused by changed working conditions.
We have a problem. What should we do?
What can parties do when they can’t agree a resolution? NEC4 contracts now contain provisions for senior representatives of the parties to negotiate before the dispute is formally referred elsewhere.
Mediation remains a vastly underused technique in construction. A mediator will work with the parties to assist them in arriving at their own agreement to settle the dispute, thus ensuring they remain in control of their own destiny. ICE’s disputes service will appoint a mediator or conciliator on application to match the parties’ needs.
Adjudication and appointing the adjudicator
Where negotiated settlement isn’t possible, the most common resolution method is adjudication.
This is a statutory right in the UK and Ireland, and in some other jurisdictions. Many contracts contain adjudication provisions, which allow the parties to agree the appointment of an adjudicator either at contract formation or when a dispute occurs.
The fallback position is the use of an adjudication nominating body (ANB). ICE is a leading ANB and maintains a register of 40 adjudicators, each of which has passed the institution’s law and contract examinations and the adjudicator’s qualifying examination. Their CPD is checked annually, and their wider adjudication work is checked every five years.
ICE’s disputes service will appoint an adjudicator, typically within a day or two of an application.
The register contains people with a wide range of engineering, quantity surveying and legal skills. It includes civil engineers, solicitors, barristers (including QCs) and surveyors. Unique among ANBs, ICE requires its adjudicators to demonstrate their knowledge of the NEC suite of contracts in the application process to join the register.
Now what happens?
So what happens in an adjudication? Since its introduction in NEC contracts in 1993, adjudication has proved to be a quick and flexible process. Its reliance primarily on written submissions made it suitable for life in lockdown.
Adjudicators, largely working alone, reach decisions allowing disputes to be resolved in around 28 days. Where meetings were required in lockdown, Microsoft Teams or Zoom became the only way of holding them and the industry adapted to this.
Managing a remote process like adjudication requires certain attributes and self-reliance. Adjudicators must understand how they derive jurisdiction and must comply with the rules of natural justice. All of these skills are assessed by ICE when deciding if to appoint someone to its registers.
Adjudication is particularly important in NEC contract disputes, because reference to the courts or to arbitration is prevented until the matter(s) in dispute has been decided by an adjudicator.
The courts in the three UK jurisdictions have shown themselves to be supportive of adjudication and it's rare that an adjudicator’s decision is not enforced by the court when it's asked to do so.
The role of ICE as a leading nominating body
The role of ICE in dispute resolution has evolved in recent years. No longer is it the default appointer of dispute resolvers (as it once was when the ICE Conditions of Contract were ubiquitous) but it is one of about 12 UK ANBs.
Contracting parties have a choice of who to use to appoint someone neutral, either when agreeing a contract, or subsequently. Those contracting to provide civil engineering design services or construction works are well advised to specify ICE as a nominating body to ensure that the appointee has the necessary legal and technical skills to understand the dispute.
In addition to the NEC suite of contracts, ICE continues to publish its Mediation/Conciliation Procedure, Adjudication Procedure and Arbitration Procedure. These documents have been written to allow their use with any form of contract.
Route to becoming an adjudicator
If you are looking to join the ICE Dispute Resolution registers, success in the Module 3 ICE Law and Contracts Exam and the ICE Adjudicators Qualifying Exam is pivotal.