By Vijay Bange and Sam Laycock
In a previous blog[1] we discussed the salient points arising from the report arising from a collaboration between The Adjudication Society and Kings College London[2]. This report addresses the issue of diversity in adjudication.
The Construction industry has frequently been cited as a sector with a lack of diversity. Poor gender diversity in particular and a lack of initiatives within the sector have been recognised by those within arbitration, with a number of organisations such as Arbitral Women and the International Council for Commercial Arbitration Task Force (to name a few), driving for better representation in the arbitration sphere.
With regards to adjudication however, the statistics still show a very poor appointment of female adjudicators. Within the eight Adjudicator Nominating Bodies (ANB’s) in the UK, the number of female adjudicators within each body accounted for slightly under 8%, with at least one body with no female adjudicators registered at all. This is perhaps most clearly contrasted with gender diversity in other perhaps more ‘mainstream’ areas of the legal profession. In the courts for example, 34% of court judges and 50% of trial judges in the UK were female in 2021[3]; the gap between this and adjudication could not be more obvious.
The main reasons highlighted for this gender gap from the survey conducted for the Adjudication Society review report, are: (i) unconscious bias, (ii) a poor section and hiring processes and; (iii) a lack of vacancies or capped panel numbers. It should not be forgotten that these barriers, amongst others, have dogged the modern legal industry as a whole and continue to do so. This is put forward as a reason for poorer statistics in adjudication, in that due to the often long tenure of adjudicators, a more diverse field of adjudicators has not been integrated yet. However, as a respondent to the survey rightly points out: “Once an adjudicator is on a panel, it is very rare for them to be removed unless they retire. This shouldn’t be the case. They should be continually assessed and appraised.”. This perhaps flags that diversity and inclusion must actively be encouraged in adjudication and that a greater number of initiatives are needed.
However, solutions and initiatives have been proposed within the adjudication sphere to address this. Adopting an ‘Adjudication Pledge’ which forces ANB’s to publish various diversity statistics and undertake to promote diversity within adjudicator cohorts. Groups akin to the Commercial Arbitration Task Force noted earlier in this article, would be useful to target diversity gaps through meeting regularly and leading various initiatives in the industry, such as events or reports. What is clear however, is that there is no one action that can attain better diversity standards in adjudication, it must be an industry wide concerted effort.
As part of the UK industry push to seek to redress the gender diversity imbalance in adjudication, it’s great to see that the Centre of Construction & Dispute Resolution, Kings College London and the Adjudication Society are launching “The Equal Representation in adjudication Pledge & Women in Adjudication”, which is taking place at Kings College London, 28 February 2023[4].
[1] https://blogs.duanemorris.com/london/2022/11/17/uk-construction-and-engineering-adjudication-2022-a-year-in-review/
[2] https://www.kcl.ac.uk/construction-law/assets/2022-construction-adjudication-in-the-united-kingdom-tracing-trends-and-guiding-reform.pdf
[3] Ministry of Justice, ‘Diversity of the judiciary: Legal professions, new appointments and current post-holders – 2021 Statistics’ (gov.uk, 15 July 2021)
[4] https://www.constructionleadershipcouncil.co.uk/news/equal-representation-in-adjudication-pledge-and-women-in-adjudication/#:~:text=Equal%20Representation%20in%20Adjudication%20Pledge%20and%20Women%20in%20Adjudication,-30%20January%202023&text=Two%20initiatives%20will%20be%20launched,over%20the%20next%20three%20years.