ARCANA (AB) is committed to maintaining a fair, transparent and robust complaints and disciplinary process for construction adjudication. The complaints process is founded on the principles of fairness, due process and natural justice.
The ARCANA (AB) partners are working towards the adoption of a single harmonized Complaints, Determination and Discipline Policy. Until this is implemented, complaints will be managed in accordance with agreed ARCANA (AB) procedures and supported by the expertise of the partner organisations.
Interim ARCANA (AB) Complaints Policy
Complaints Procedure (CP) Content Outline:
1. Overview
· Purpose of the customer complaints procedure
2. Matters that may investigated
· Background
· Types of complaints ARCANA (AB) can investigate
· Types of complaints ARCANA (AB) cannot investigate
3. The investigation
· Costs
· What happens during the investigation?
· Potential outcomes
4. Practical information
· Contact details
· Time limits
· Withdrawal of a complaint
Overview
Purpose of this complaint procedure
ARCANA (AB) has adapted this complaints procedure on an interim basis to ensure that those parties who use the services of ARCANA (AB) to source the nomination of construction adjudicators, continue to have confidence in the professionalism and competence of the services we provide and the adjudicators we nominate.
All adjudicators who are nominated by ARCANA (AB), or are on the ARCANA (AB) roster of adjudicators, and hold themselves out as being able to discharge the role of adjudicator, are covered by this complaint procedure.
The purpose of this policy is to ensure that parties to an adjudication, their professional representatives and adjudicators on the ARCANA (AB) roster are fully aware of the procedure that will be followed when a complaint has been received regarding an adjudication or adjudicator.
This document provides an explanation of the matters that are within the scope of the complaint procedure, a step-by-step guide to the process of investigation that will take place, and a summary of recourse or corrective measures that can be considered.
Matters that may be investigated
This procedure for investigating complaints applies to all adjudicators who are on the ARCANA (AB) roster.
We may, at our discretion, refer an allegation relating to the personal and/or professional conduct of an adjudicator to their professional regulatory body, if applicable. Such a referral may, in addition to any steps taken by ARCANA (AB) under this complaint procedure, lead to disciplinary action against the dispute resolver. Examples of conduct which may fall within this category include demonstrations of abuse (verbal/physical), discriminatory or biased behavior, or a deliberate or reckless failure to declare a conflict of interest.
ARCANA (AB) has an unfettered discretion as to who is or is not included on the roster of adjudicators and can decide whether or not to temporarily, or permanently, remove any adjudicator from the roster. Normally, a decision to remove an adjudicator from the roster will be taken to safeguard the interests of parties to adjudications.
Types of complaints ARCANA (AB) can investigate
We can investigate complaints relating to the competencies reasonably expected of an adjudicator on the ARCANA (AB) roster. For example:
a) Inadequate case management including inadequately setting out and communicating the process at the outset; haphazardly requesting paperwork; inefficiently organizing evidence and representations; failing, as far as possible, to ensure that all information provided by the parties or obtained by his or her own efforts, is equally shared with all parties to a dispute
b) Poor time management including failing to adhere to relevant prescribed timetables and time limits; repeatedly cancelling meetings without good reason; late billing of costs (including fees)
c) Complaints relating to an adjudicator’s personal and/or professional conduct in the course of acting as an adjudicator in respect of the parties or others associated with the adjudication process but not directly integral to the decision-making process itself.
Types of complaints ARCANA (AB) cannot investigate
ARCANA (AB) authority does not extend to any issue relating to:
a) The merits or otherwise of decision by the adjudicator on the substantive disputes. This includes the reasoning provided by the adjudicator for the decision; the inclusion or exclusion of, or weight given, to evidence; any matters that go to the merits of rulings by the adjudicator on their jurisdiction or other preliminary or ancillary matters;
b) The reasonableness of an adjudicator’s decision on allocation of costs (if applicable);
Continuing, ARCANA (AB) may not:
c) Enquire into, or in any way interfere with, any on-going dispute resolution process, such as arbitration or litigation;
d) Order an adjudicator to revisit, change, or withdraw a decision; or
e) Consider any allegation of professional negligence relating to the decision of an adjudicator or to instruct an adjudicator to pay compensation based on alleged negligence or any other cause of action.
These issues may only be determined by a Court of Law.
The Investigation
Costs
There is no charge made to either a complainant or adjudicator for a complaint to be lodged with ARCANA (AB), or for undertaking an investigation into a complaint.
What happens during the investigation?
ARCANA (AB) will always attempt to contact the adjudicator by telephone in the first instance to inform him/her that a complaint has been received. In the event that we are unable to speak with the adjudicator, an email will be sent.
Should ARCANA (AB) consider that the complaint does not fall within our remit, a response will be sent to the complainant which will explain the reasons why we are unable to pursue the matter further. The adjudicator may be informed of this outcome, only if he or she has been notified of the complaint before the decision has been made not to pursue the matter.
If ARCANA (AB) considers that all or part of a complaint falls within our remit, the following procedure will be undertaken:
a) ARCANA (AB) will invite the adjudicator to respond to the complaint in writing and we will give a deadline date for the response. A full copy of the complainant’s correspondence will be provided to the adjudicator to ensure they are aware of the issues that need to be addressed. Please note the deadline to respond may be extended by request.
b) ARCANA (AB) will consider any response received from the adjudicator and inform both the complainant and the adjudicator of the next steps.
c) ARCANA (AB) may at any stage seek advice from others within or outside of RICS ADRIC. This may include professionals experienced in adjudication law, practice and procedures, or in the subject matter of the complaint.
d) ARCANA (AB) may at any stage contact the other party or parties to the adjudication and may at our sole discretion seek their comments and observations on the matters raised in the complaint.
e) ARCANA (AB) will consider the matter further and make a decision. We will write to the complainant, the adjudicator and, if appropriate, any other parties to advise them of the outcome.
Potential outcomes
The purpose of an investigation is to ensure the excellence of service provided by the adjudicators appointed by ARCANA (AB). Our objective is therefore not necessarily to punish, but to ensure that adjudicators are fully aware of and at all times act in full compliance with the high standards required of them by ARCANA (AB). Possible outcomes include:
Where an adjudicator has made a minor error in practice or procedure, and the complaint overall is not considered serious, he/she will be given advice and guidance on how to proceed in future disputes where he/she is appointed, so as to avoid similar complaints
Where an adjudicator has not discharged his/her role adequately and this has inconvenienced a complainant, but has not caused serious disadvantage, he/she may be warned as to future conduct, and notified that any further failures to perform adequately could result in suspension or removal from the roster from which appointments are made
Where an investigation determines that an adjudicator is significantly weak in a particular area, he/she may be suspended from the roster from which appointments are made until such time as ARCANA (AB) is satisfied that he/she has addressed the matter through training/coaching.
In addition, all adjudicators undertake regular reassessments, and where a complaint has been received, ARCANA (AB) may bring the complaint to the attention of the Reassessment Board for consideration.
Where an investigation uncovers serious shortcomings in terms of the ability of an adjudicator to discharge his/her role, and ARCANA (AB) considers that the shortcomings have not, or cannot, be resolved by further training or coaching, ARCANA (AB) may remove an adjudicator from the roster from which appointments are made.
Practical information regarding complaints
ARCANA (AB) contact details
Should you be asked by ARCANA (AB) to provide further information or to respond to a complaint, please reply directly to the member of staff who has written to you.
Please note that, while ARCANA (AB) will offer state-of-the-art confidentiality via BOX relating to file correspondence in each and every complaint, no email system can be
guaranteed to be 100% secure. ARCANA (AB) cannot be held responsible for email service/internet system failures and/or downtime.
Time limits
A complaint must be made within twelve months of the act(s) complained of, or twelve months of the completion of the appointment, whichever is the later. (In exceptional circumstances, ARCANA (AB) may extend this time limit).
In most circumstances, a complaint can only be investigated where the adjudication (including any decision as to costs) has been completed and any appeal process exhausted. A complaint cannot normally be investigated until any active legal action against the adjudicator has been finalized.
Withdrawal of a complaint
Should a complaint be withdrawn or resolved informally, ARCANA (AB) may inform the adjudicator in writing.
ADDITIONAL REFERENCES:
RICS – Raising Concerns about Regulated Members:
https://www.rics.org/footer/contact-us
ADRIC – Complaints & Discipline Policy:
ADRIA – Complaint Resolution Policy: