15 Sep 2023
Kim Franklin KC C.Arb FCIArb shares her thoughts on diversity in construction adjudication in the UK and recommendations on how we can work to achieve greater diversity in the sector.
Kim Franklin KC C.Arb FCIArb did various jobs to fund her law degree and bar school, including working as a legal secretary. Specialising in international construction and infrastructure disputes as a barrister, since taking silk in 2016, Kim now acts as a full-time arbitrator and construction adjudicator with a reputation for clarity, strong case management, and sound strategic judgment.
Construction adjudication in the UK needs greater diversity. The number of women adjudicators, in particular, is shockingly low. Precise figures are hard to come by. There is no central register of adjudicators, and although most practising adjudicators are registered with an Adjudicator Nominating Body (ANB), many are registered with more than one. One ANB panel has no women members. Even some well-established ANBs do not publish diversity data. Some practitioners report never having encountered a female adjudicator. No wonder, then, that the 2022 Kings College Report on Adjudication Trends suggests that of the estimated 500 or so practising adjudicators, only about 7% are women.
Count them - that’s 39 of us.
To encourage more women to act as construction adjudicators, I’d like to debunk a few myths.
It's an historic thing
Current adjudicators, they say, qualified 30 years ago when diversity in construction dispute resolution was even poorer. The potential pool of women adjudicators is improving and given time, will reach parity.
This overlooks the fact that when adjudication was introduced in the late 1990s, nascent ANBs recruited freely from post-10-year qualified applicants. Along with other early adjudicators, I received my first appointment in my 30s. Chances are, if you are old enough to run a family and apply for partnership, you can be an adjudicator.
Nobody’s asked me
Women, in particular, suffer from what’s been termed the ‘tiara syndrome’ with the expectation that rewards will follow naturally from hard work and good results. In fact, if you don’t put yourself forward for promotion, training or a different role, it will be assumed that you don’t want it. Tell yourself, your colleagues and anyone who’ll listen that you want to be an adjudicator.
They don’t want me
Many ANBs close their panels with a membership that reflects the number of appointments they can reasonably make. Some have expensive training schemes as a prerequisite to eligibility. Everyone is working for longer, and the demographic of most panels has become stale. There is no one recognised path to becoming an adjudicator, and an understandable perception among younger, more diverse candidates is that there is no role for them.
Although ANBs may give the impression that they don’t want more diverse candidates, they certainly need them. Recent initiatives, such as the Adjudication Pledge, have highlighted the problem, and the more enlightened ANBs are beginning to address it. Now is a good time to storm the barricades.
All adjudicators are lawyers
As its instigator, Sir Michael Latham would have been the first to point out, adjudication was intended to be an on-site dispute resolution process to be managed by on-the-spot construction professionals, who remain the predominant adjudicator disciple. Adjudication is, however, a legal process. It requires good case management to identify the issues and an understanding of the role of evidence in proving them. Some ANB panels, including Ciarb and TECSA (Technology and Construction Solicitors’ Association) are multi-discipline. If you have a background in construction dispute resolution, you can be an adjudicator.
Why would I want to be an adjudicator?
This is a surprisingly common question, with the perception that acting as adjudicator is a lonely job, that you are bombarded by documents, unhelpful submissions, and not always polite emails. Adjudication dominates dispute resolution in an industry known for adversarial conflict, confrontation, and testosterone. There is no procedural rule book, and some parties and party-representatives adopt a ‘have a go’ approach and resort to poor tactics.
You want to be an adjudicator because:
Kim Franklin KC C.Arb FCIArb finishes, “There is no central register of adjudicators. I invite female adjudicators to contact me if they are interested in working together to create the first-ever Women Adjudicator Roster to give greater visibility to the number of women in the profession.”
Ciarb is committed to increasing the diversity of its panels and is a signatory to the Equal Representation in Adjudication Pledge. Parties can have confidence in Ciarb’s independent appointment process, which is designed to select the adjudicator best suited to the particular requirements and circumstances of the dispute.
About the Author:
Kim Franklin KC C.Arb FCIArb is a recognised independent international arbitrator specializing in the construction, engineering and infrastructure sectors, focussing on major projects and the resolution of high-value, technically complex disputes involving project delay, PFI and FIDIC contracts. She acts predominantly as arbitrator, dispute board member and adjudicator, resolving disputes arising from complex projects in international arbitration, dispute boards and as UK construction adjudicator. A Chartered Arbitrator since 2000, Kim acts as party-appointed sole arbitrator and Tribunal Chair for arbitrations under institutional rules, including ICC, ADCCAC and DIAC in the UAE and GCC, with experience of the ICC Expedited Procedure and as Emergency Arbitrator.
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Kim Franklin KC C.Arb FCIArb and Catherine Dixon, CEO of Ciarb, will be speaking at The Adjudication Society's Annual Conference this November.
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