Construction
How does an adjudicator make their decision?
- Written by: Samuel Okoronkwo
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When two parties are dealing with a dispute and struggling to reach a resolution, it is only natural that a third impartial party be brought in to make a decision. In its simplest terms, that is what adjudication is. In cases of construction disputes, an adjudicator will be appointed to review both sides of the dispute and come to a binding decision to resolve it.
If you have never dealt with adjudication before, you cannot be blamed for wondering exactly what an adjudicator does. While you now know (or may have already known) that an adjudicator makes a decision in cases referred to adjudication, you are likely still wondering:
- How is an adjudicator appointed (chosen)?
- What does an adjudicator need to make a decision?
- What happens if an adjudicator makes an “unfair” decision?
- Can an adjudicator’s decision be challenged?
And, the usual top question:
- How does an adjudicator make a decision?
Let me answer your questions by taking you through the process.
Appointing an adjudicator
Once the Notice of Adjudication has been served, the next step is to appoint an adjudicator. Both parties can agree on an adjudicator or the Referring Party can make an application to an Adjudicator Nominating Body (ANB) – this is usually done in cases where the parties are unable to agree on an adjudicator.
Preparing evidence
While there are no formal rules for what evidence must be submitted for an adjudicator to review, there are guidelines to ensure you are doing all you can to turn the decision in your favour. An adjudicator will review this evidence and potentially conduct their own investigation through site visits and their own specialist knowledge.
Receiving a decision
A decision will be reached within the typical 28 day period for adjudication. The adjudicator will weigh the evidence, resolve any conflicting facts and make a binding decision that will resolve the dispute. It is important to note that this decision may not always be completely in line with one party or the other. In some cases, the decision will be made from the adjudicator’s own reasoning based on the facts presented to them.
Challenging an adjudicator’s decision
While an adjudicator’s decision must be honoured in the moment it is delivered, the decision can be challenged at a later date. This is why you will often see or hear the term “pay now, argue later” associated with adjudication. To avoid any further delays, the decision must be honoured (usually in the form of payment) even if one or both parties intend to challenge the decision.
If you deem an adjudicator’s decision “unfair”, this can also be challenged but you must have evidence of bias that does not rely on your opinion or feelings of the outcome delivered.
Learn some common reasons adjudication may not effectively resolve a dispute and how to address it in this article: When can adjudication go wrong?
Conclusion
While it is ultimately the adjudicator that makes the decision in adjudication, there are steps you can take to ensure a fair outcome. If you are unsure about any part of the process, Mercantile Barristers are experts in all aspects of adjudication law as it applies in construction contracts between employers, professional consultants, contractors and sub-contractors.
Get in touch for adjudication advice and guidance.
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