Chartered Arbitrator and Engineer, Adjudicator, Mediator
Before commencing adjudication, you should audit your adjudication risk. Risk audit is a process, which helps you make sensible commercial decisions. It highlights risks, their nature and scope, and allows you to determine how to prevent or reduce the risks.
One way to evaluate adjudication risk is to use a decision tree. Widely used in engineering, a decision tree can help you decide the dispute resolution strategy most likely to secure the best financial outcome for you. Graphical representation of risk helps you to make a reasoned assessment of the adjudication outcome, and allows you to compare that outcome to the costs you will incur in adjudication, and to any settlement offer. If you have suffered a loss of cash flow because of non-payment and invested in preparing a detailed claim, there will always be a maximum recovery amount. The maximum is the total of the quantum of all the items claimed without deductions. It is natural for senior management to focus on the maximum amount possible; this is the wrong approach. Experience shows that “independent experts” often provide different credible quantum calculations, seemingly underpinned by objective standards. The maximum amount is only ever an aspirational figure, and to imbue realism I recommend the use of a decision tree to calculate an “expected cash equivalent” (ECE). Competent mediators will use the decision tree method, or a variation of it, to help destabilise the parties and move them from entrenched positions.
In an adjudication concerning the modernisation and installation of lifts, the Referring Party said that it was entitled to additional money because of 17 variations. The Responding Party said that it was entitled to deduct money because of defective and incomplete work. Figure 1 shows how a decision tree can be used to chart the lifts dispute. The Referring Party said one variation was for Lift Builders Work, another variation was for dealing with Inherited Faults, etc. The Responding Party said that it wanted credit for Unfinished Items.
To grow the decision tree, each variation becomes a branch of the diagram, and determines the likely ECE based on statistical probability. Each branch of the decision tree represents a monetary decision event. The tree structure links the outcome of occurrences, and shows how one decision leads to the next. The use of branches indicates that each variation or deduction is mutually exclusive to another.
The efficient and normal way for an adjudicator to consider variations or deductions is first to decide liability and then to decide quantum. If the adjudicator decides that there is no liability, there is no need for him to look at quantum. However, for you, once the branches are in place it is easier to populate decision tree information starting with quantum and then moving to liability. In the lifts dispute the Lift Builders Work variation has a possible high valuation of £40,000 and a possible low valuation of £10,000. You assess that there is a 75% (0.75) probability that the adjudicator will decide the high valuation is correct, and there is a 25% (0.25) probability that the adjudicator will decide the low valuation is correct. Factoring the high and low valuation with their associated probability leads to a Net Quantum Outcome of £32,500. Often the decision tree has three sub- branches representing a high, medium and low valuation. Whatever number, it is essential that the probability of the branch events occurring always add to 100% (1.0).
Figure 1 Decision Tree in relation to the Lifts Dispute
To make the decision tree robust it is important to support each probability with reasons. Intuition is not a reason. Not preparing a full list of reasons makes the decision tree branches brittle, and is a common decision tree malady. If you identify the reasons why the adjudicator will decide that the low valuation is correct, you are identifying the scope and nature of the risks that you face. Risk is a measure of the probability and severity of adverse effects. As you may be able to do things to reduce the risks, change the risk consequences, or share the risk with another party such as a sub- contractor, there might be a sequence of linked dispute decision trees. Decision trees can be drafted using paper and pencil, by using a PC based spreadsheet such as Microsoft Excel, or proprietary low cost decision tree software. Using a spreadsheet or software makes it easy to update the decision tree quickly when there is new information that changes your assessment of branch risks or outcomes.
Linked to the Net Quantum Outcome is the likelihood of the adjudicator deciding that one party or the other has liability for the variation. You assess that there is an 80% (0.80) probability that the adjudicator will decide that the other party is liable for the Lift Builders Work variation, and a 20% (0.20) probability that you are liable. If the adjudicator decides that you are liable, you get nothing. Multiplying the probability 80% (0.8) that the other side is liable, by the Net Quantum Outcome, £32,500 gives the Lift Builders Work variation ECE of £26,000. Populating the Figure 1 decision tree with the Lift Builders Work and Inherited Faults variations, and the Unfinished Items deduction gives an ECE adjudication outcome of £37,000. This contrasts starkly with the maximum, amount possible £64,000.
Each party might spend £15,000 in claims consultants and lawyers’ fees to assist it. Except in very limited circumstances, in the UK a party’s costs in preparing for and participating in adjudication are not recoverable. However, the adjudicator could decide that you should pay all of his fees and expenses, or a percentage thereof. Based on the above, if the ECE adjudication outcome is £37,000, and your adjudication professional fees budget is £15,000, irrespective of whether you are risk- adverse or not, accepting an offer to settle for £22,500 makes sense. This would give you £500 more than the ECE, and you can invest your companies’ time pursuing other more profitable opportunities.
If you are adjudicating in a jurisdiction such as Malaysia, where the party’s costs in preparing for and participating in adjudication are recoverable, then not accepting an offer of £37,500 leads you to liability to pay the other parties’ costs, which if not taxed, could reduce your net recovery to £37,000- £15,000 = £22,000.
Contributor: Niall is Chair of the CIC Adjudicator Nominating Body Management Board. He is a Chartered Arbitrator, Building Services Engineer, Mechanical Engineer, Information Systems Engineer and Chartered Builder. He provides arbitration, adjudication and mediation services in commercial technology, engineering and construction disputes. https://www.linkedin.com/in/adjudicator