The Chair of CIArb’s Panels Management Group, John Redmond, talks to us about his journey to becoming a full time adjudicator, arbitrator and mediator, and gives practical advice for those wishing to embark on careers as dispute resolvers.
Tell us about your background in the construction field
Back in 1978 I was a two-year qualified solicitor specialising in shipping disputes. To get out of London I told my prospective employers that I handled construction cases, which was sort of partly true. Laytons opened an office in Bristol and I became the litigation department.
By chance, some construction cases came in and I found them more interesting than the rest. I eventually refused to handle anything else and declared myself to be a specialist. Most of my work was main contractor / sub-contractor contract disputes, with an occasional international flavour.
A little construction jargon used to impress clients back then. They were astonished to find a solicitor who appeared to understand the difference between a black bolt and high strength friction grip bolt.
What made you decide to transition from a career as a construction solicitor to becoming a full time arbitrator, adjudicator and mediator?
I had started acting as an arbitrator, adjudicator and occasional mediator several years before giving up practising as a solicitor.
One day I looked at the list of 120 partners in my firm and realised that at 56 I was the oldest. Time to move on. Also, I felt that it was time to give up on business plans, team management and staff reviews...
You became a member of CIArb in 1993. Why did you join CIArb, and how has it helped you as a dispute resolver?
Two reasons: I wanted to learn more about arbitration and in particular I wanted to know what went on inside an arbitrator's head so I could represent my clients more effectively.
Secondly, as the arbitrators all seemed fairly ancient I thought that one day being an arbitrator would provide a welcome supplement to the pension that I was failing to build.
Membership of the CIArb has certainly helped with the first of those. Being a FCIArb and more recently a Chartered Arbitrator has been a real benefit in terms of credibility.
What was the biggest challenge you faced in becoming an Adjudicator?
Trying to work out what the game was. I trained as an adjudicator before the Construction Act came into force. The instructors told us that we would be like Batman, called in to sort out a problem.
We would act inquisitorially and demand information. We would call up the Clerk of Works to find out what really happened. We would insist on seeing the Architect's files.
We would do all sorts of things that we now know would make our decisions unenforceable. We have had to forget all that.
What is the best advice you have been given in your journey to becoming a full time dispute resolver?
Having the badge 'Arbitrator' does not bring you appointments. You will be appointed because the parties, or the appointing body, trust that you will be able to do a good job. That trust takes time to build. It will be based on your career in your primary profession.
What has been the most difficult case you have faced as an Adjudicator, and why?
Probably the first adjudication I did. It was a claim by a scaffolding subcontractor against a main contractor for about £10,000. There were some 150 disputed variations.
I decided to hold a meeting (bad mistake). After a couple of hours we had discussed three variations and physical violence was imminent. And scaffolders can be violent.
What do you consider to be the key skills required to become an Adjudicator?
Clarity of thought. Sounds pompous, but its essential.
One party (at least) will try to make it very complicated. All sorts of nonsense is thrown at you. The other party will assiduously address every point, mistakenly adding respectability to each. Rejoinders and surrejoinders build up around you, accelerating towards the 28 day limit.
You have to be able to cut through it all and deal with the real issues.
Also, you need a thick skin. One party may take violent objection to the way that you are proceeding. You are acting in flagrant breach of natural justice, you are a disgrace to your profession, formal complaints will be made and your fees will not be paid. You can't let that get to you.
I would also say that you need the ability to write a clear decision. If a party cannot understand your reasons, he will assume that you have got it all wrong. I ask my wife to read all my decisions. She is very good at telling me when I am writing junk.
As a member of all three of CIArb’s Presidential Panels, and as the current Chair of the Panels Management Group, what practical advice would you give to members wishing to join our Panels but struggling to get experience as a dispute resolver?
The President cannot appoint an arbitrator, adjudicator or mediator who is unable to demonstrate experience.
Panel membership is not the way to achieve your first appointments. The first appointment is of course the most elusive. The formal qualification (FCIArb etc) is necessary to show that you know the theory.
Then you need to demonstrate commitment to the process - by participation in Branch and other networking events.
You need to let your professional contacts know that you are interested in appointments, that you are prepared to make yourself available (possibly at short notice) and perhaps that you are relatively inexpensive. If they have trust in you because they have worked with you as surveyor, engineer, lawyer etc, the offer of an appointment will eventually pop up.
How would you like to see adjudication develop in the coming years? Are any changes needed?
The biggest problem for adjudication is the cost. The parties can choose who will represent them and they can exercise some control over how much their representative is paid, but there is very little that they can do about the Adjudicator's fee.
The hourly rate quoted at the start of the case is no guide to the total fee that will be charged at the end, and it often seems that a relatively low hourly rate builds to an extraordinarily high final charge.
The courts have shown little interest in whether the adjudicator's fee is reasonable, and the nominating bodies currently have no mechanism for review.
Something needs to be done, possibly by the nominating bodies.
Meanwhile there is scope, particularly in smaller matters, for fixed adjudicator's fees. CIArb has introduced fixed fees for smaller arbitrations, and there is no reason why a similar scheme could not work in adjudications involving claims of, say, up to £10,000.
John Redmond qualified as a solicitor in 1976. He joined Clyde & Co and dealt with shipping disputes for two years. He moved to Laytons in 1978 on the opening of a Bristol office. As the sole member of the litigation team he dealt with a variety of disputes, but eventually specialised in construction.
He joined Osborne Clarke to establish and lead their construction team in 2000, retiring from the firm in 2010. He remains a consultant in the Bristol office, and is now a member of ArbDB, the Arbitration and Dispute Board Chambers.
He is a former chair of the UK Society of Construction Law, a member of the Society of Construction Arbitrators and a FCIArb. He is a Chartered Arbitrator and, a member of the CIArb Presidential Panels of Arbitrators, Adjudicators and Mediators.
Despite being formerly a specialist construction lawyer, he now deals with a wide variety of cases including professional partnership and shareholder disputes and international trade matters. He has been appointed several times by the International Chamber of Commerce as Arbitrator, Dispute Board Member and Expert. He has handled some 250 adjudications and also acts as Mediator.
He was co-author with Douglas Stephenson of Civil Engineering Claims and author of Adjudication in Construction Contracts, both published by Blackwell. He has been a regular contributor to Building and other periodicals and is well known as a speaker at construction law conferences.
This article was originally published in The Chartered Institute of Arbitrators’ Dispute Appointment Service (DAS) newsletter on 12 October 2016 www.ciarb.org