Through a combination of the data within the ‘Sixth Annual Report’ from the Construction Contracts Adjudication Service (CCAS) and the leading construction industry bodies, it is possible to gain an indication of dispute resolution activity in Ireland. Data from the CCAS, CIF, ciarb, SCSI, RIAI and EI confirms that in the last four years to 25 July 2022, there have been 322 nominations of a third-party neutral to resolve construction disputes. These nominations have been across the four primary dispute resolution processes of Mediation, Conciliation, Adjudication and Arbitration.
The data cannot be conclusive in scale of activity as it is not unusual to have an agreed nomination between parties, without the need to refer to an industry body, which is unrecorded in the data. The number of agreed nominations, particularly through the Public Works Contract (PWC) is significant and would for example include standing conciliators, cannot be determined. Therefore, the available nomination data, from the industry bodies, can only be a sample of total dispute resolution activity across the industry, from which to identify trends.
It is of note that of the total 322 nominations over the four-year period a considerable proportion of 186, being just under 58%, have been nominations for an adjudicator through the CCAS. From a standing start in July 2016, nominations for adjudicators through the CCAS have steadily increased to the point of approaching a doubling in nominations in 2021/2022 compared to the average of the three previous years. At the same time there has been a corresponding decrease in nominations for Mediation down from 17 in 18/19 to 1 in 21/22, and Conciliation down from 34 in 18/19 to 10 in 21/22. Over the same four-year period there has been a consistent level of arbitrator nominations of circa seven each year, with a notable increase in 20/21. At the same time there appears to be a decreasing reliance on industry bodies in seeking the nomination of a third-party neutral. The CIF has reported no nominations in 21/22, with the SCSI and ciarb reporting only one nomination each.
Because of the number of nominations that proceed on a party agreed basis are unknown and for which there is no data, it would be incorrect to state that adjudication is now the leading process for the resolution of construction industry disputes. But, for those parties who cannot, or will not, agree to nominate a third-party neutral themselves, the seeking of nomination through the CCAS for adjudication is now the process of choice. Of the total of 322 nominations for the four-year period, a sub-total of 198, being almost two thirds of the total, are nominations for adjudication. The current year nomination data to 25 July 2023, once compiled, is likely to confirm, or challenge, the above trends as permanent characteristics in the nomination of third-party neutrals, through the industry bodies, to construction disputes.