It depends first on whether a clock is running. If you're on W1, or a final assessment deadline is close, adjudication or negotiate isn't a free choice: the time limit decides, and you may need to refer while you talk. Under W2 with no deadline, keep negotiating while talks are making progress, and set a date to stop.
After that, the size of the sum, the strength of your evidence and how you need to work with the other side all count. This page is practical guidance rather than contract text, apart from the periods stated.
Check the deadlines first
- W1: four weeks is common for disputing an action or inaction, and talks don't stop it. Read the time limit tables today.
- Final assessment under NEC4: it becomes conclusive unless a dispute is referred in time, under W1 and W2 alike. See disagreeing with the final assessment.
- After a decision: four weeks to notify the tribunal, if you're dissatisfied.
- Agree anything that extends a period in writing, before it runs out.
How to decide
| Factor | Points towards negotiating | Points towards adjudicating |
|---|---|---|
| Other side's behaviour | Replying, moving and sharing information | Silence, repeated delay or one fixed position |
| Question at issue | A valuation with a range of reasonable answers | A clear question, such as whether a term applies or a sum is due |
| Your evidence | Still being gathered | Ready now. Most of the work comes before the notice |
| Sum at stake | Small compared with the likely cost of running a referral | Large enough to justify the fees and management time |
| Cash | You can carry it for now | The sum is hurting cash flow |
| Project stage | Live work with key decisions ahead | Near completion, or the relationship is already over |
| Risk of a poor result | You'd rather keep the outcome in your own hands | You're content for a third party to decide within weeks |
What adjudication involves
Under W2, the referral follows within seven days of the notice, and the decision normally comes within 28 days of the referral, unless that's extended. The other side has 14 days for further information. See the procedure step by step. A few consequences are worth knowing:
- You get one shot on that issue. A Party can't refer a dispute that's substantially the same as one already decided.
- The decision binds unless overturned. Parties comply first, and the tribunal can look again if notified in time.
- The Adjudicator's fees are allocated in the decision. Budget for your own costs too, and assume you won't recover them unless advised otherwise.
- The notice sets the scope. A sloppy description can limit what's decided.
A way to do both
- Write a short position paper with your best figure and evidence.
- Invite a senior meeting, with a fixed date within two weeks. Under NEC4 W2, Senior Representatives are available if both Parties agree, with statements of case in one week and a discussion period of up to three weeks.
- Agree that what's said stays without prejudice. Take advice on how to mark it.
- Prepare the referral in parallel, so that the threat is real and the seven days won't be a scramble.
- If the date passes without progress, give notice.
An illustration
A fictional Contractor is owed a disputed £140,000 on three compensation events, on a W2 contract with six months still to run. Two turn on a pure question of whether the Scope covered certain work. One turns on valuation. It meets at senior level, and settles the valuation at £35,000 against its £50,000. The other two don't move, so it adjudicates on just that question, which keeps the referral narrow and cheaper. The figures are illustrative.
Sample closing line for a final negotiating letter
"We've set out our position and evidence. If we haven't agreed this by [date], we intend to give notice of adjudication. This letter doesn't extend any period in the contract."
What to expect from the other side
A referring Party is sometimes accused of ambushing the other. Timing a referral over a holiday period may also draw a complaint, and it won't win friends. On the receiving side, don't ignore a notice, as the Adjudicator can carry on without you: get help on the first day. Look too at NEC dispute avoidance for ways to reduce the odds of getting here, and at the NEC questions hub for related problems.
Related guides
- NEC Questions Answered: Real Situations on Site
- A New Project Manager Is Reversing Earlier Decisions
- The Project Manager Works for the Client: Are They Impartial?
- The Relationship Has Broken Down: What Does Clause 10 Actually Require?
- The Client Is in Breach but No Event Fits: Is There a Remedy?
- Can We Still Refer a Dispute After the Time Limit?
See how this works in practice
Click through Contract Status with sample contracts: raise the notice, reply to it, and watch both sides of one record.
Take the guided tour Book a demo
Use the NEC deadline calculator, use the free NEC tools or download free NEC templates.
This guide is general information in our own words, not legal advice. Your contract and its Contract Data always govern. NEC, NEC3 and NEC4 are trade marks of Thomas Telford Ltd; Contract Status is not affiliated with or endorsed by NEC.