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Once upon a time, the normal process for dispute resolution in the construction industry was arbitration. The Official Referees (the old name for the Technology and Construction Court) seemed rather pedestrian and of variable quality. Arbitration wasn’t exactly greased lightning either, but you could at least choose your arbitrator.

Adjudication choked off arbitration in domestic (as opposed to international) disputes. The arbitrators joined the swelling hordes of adjudicators, and parties in dispute began to expect an enforceable decision in just 28 days. While arbitration remained a possibility for a post-adjudication final battle, very few cases went that far.

Faced with the decline in interest in UK construction arbitration, in 2004 the Society of Construction Arbitrators published rules for streamlined arbitration that parties could adopt if they wanted the finality of arbitration within a limited timeframe. The 100-day arbitration procedure attracted reasonable interest at the time, but was not popular. Most practitioners seemed to be satisfied adjudication was all they needed.

Recently, though, there has been a resurgence of interest in arbitration, with regular enquiries to the society. The reasons for this are not clear. It may be that while adjudication is a quick, practical way to resolve relatively simple disputes, there are occasions when it is too quick, too superficial, and still very expensive. Increasingly, decisions in substantial disputes are taking much more than the basic 28 days. Some adjudications last for months, limping in a haphazard way from extension to extension and costing well over £100,000 on each side.

The features of the Society of Construction Arbitrators’ 100-day procedure are:

• The 100 days runs from the crystallisation of the dispute by service of the defence, or defence to counterclaim if there is one
• The arbitrator will fix a timetable for all further exchanges of pleadings, documents and witness statements
• If there is to be an oral hearing, it will take place not more than 28 days after the other procedural steps. The hearing will not last longer than 10 days
• The arbitrator will make the award within 30 days of the end of the hearing, and within 100 days of the start of the procedure
• The arbitrator can accelerate the procedure if the parties agree, but cannot extend the period without agreement of the parties or a court order
• Orders for costs are dealt with after the main award but, again, within a tight timetable.

The procedure has several advantages over statutory adjudication. While it is still a swift process, there is time to make sure the arguments are presented in a comprehensive way, instead of a flurry of replies to replies to replies arriving when the poor adjudicator has only 12 hours left to write the decision.

In adjudication, parties are often left feeling they have not had a chance to say what they wanted to say, or to cross-examine witnesses they think are lying through their teeth

There is also time for a real hearing, when witnesses can be examined. This is seldom possible in adjudication. If the adjudicator decides to convene a meeting to discuss aspects of the case, the parties are still often left feeling that they have not had a chance to say what they really wanted to say, or to cross-examine witnesses they think are lying through their teeth.

Costs are a real issue. An adjudicator can decide which party will pay the adjudicator’s fees, but normally cannot make an award allowing the winner to recoup costs from the other side. This is a great disadvantage, and can make adjudication a seriously bad choice. An arbitrator can award costs, including the costs of preparing the case prior to issue.

Parties to an arbitration can also summon up help from the courts if it is needed. For example, a witness can be compelled by court order to attend an arbitration hearing, but the same cannot happen in adjudication. A party can also be compelled to produce documents that an adjudicator may not be able to extract. If the losing party has assets abroad, there are international conventions for the enforcement of arbitrators’ awards, but not adjudicators’ decisions.

This process is only available by consent. The original contract may have an arbitration clause, but the 100-day procedure cannot be imposed unless it was agreed in that clause. If both parties really believe that they have merit on their side, this may not be a problem. The identity of the arbitrator must also be agreed, but again if one side declines your suggestions the parties can ask the president of the Society of Construction Arbitrators to nominate someone.

A full copy of the procedure can be downloaded from the society’s website, .