1 - Conflict Avoidance, Management and Dispute Resolution

Question 1

Tell me about the RICS Dispute Resolution Service

Answer 1

• Oldest DRS in the world
• Well established
• Provides ADR in Land, Property and Construction

Question 2

What is the TCC? What can you tell me about them?

Answer 2

• Technology and Construction Court

- Set up to improve the way in which Construction disputes are handled for formal litigation proceedings

Question 3

How do you avoid conflict?

Answer 3

• Clarity of Client Brief
• Understanding of requirements, risk allocation and contract provisions
• Follow the contract!
• Keep accurate records and write things down
• Remove emotion from the equation
• Professional practice in line with regulations and guidance, including from the RICS.

Question 4

Can you name me the types of ADR?

Answer 4

• Mediation and Conciliation
• Adjudication
• Arbitration (although this can be seen as litigation)
• Senior Representative
• Expert Determination

Question 5

Can you tell me the steps in the Adjudication process?

Answer 5

• Dispute needs to crystalize first then:

Day 0 - Party sends Notice of Adjudication
Day 0-7 - Party has to send Referral Notice
Day 0-7 - Adjudicator needs to be appointed
Day 7-14 or 21 - Other Party responds
Day 28 - Adjudicator issues decision

• Can be extended up to 42 days by agreement
• Adjudicator’s decision is binding

Question 6

What does the NEC4 Contract say about Adjudication? How is set up in this Contract?

Answer 6

• Option W2 must be chosen
• There is a ‘Senior Representative’ process but this isn’t mandatory
• After Adjudication it can go to Tribunal which is either Arbitration or Litigation
• DRSC is used to appoint the Adjudicator

Question 7

What is a Dispute Resolution Board?

Answer 7

Alliance and Partnering contracts usually allow for a DRB as another step for keeping disputes internal

Question 8

Why might you appoint a Dispute Resolution Advisor?

Answer 8

To act similar to a Clerk of Works in the context of preventing parties from coming to a dispute

Question 9

What are the Three Pillars of Dispute Resolution?

Answer 9

• Negotiation
• Mediation
• Adjudication

Question 10

What RICS publications are there on Dispute Resolution?

Answer 10

• Conflict of Interest

- Conflict avoidance and dispute resolution in Construction

Question 11

What is contained within the Conflict Avoidance and Dispute Resolution Guidance Note?

Answer 11

• How best to avoid conflict
• Description of the types of ADR
• More detailed sections on how each of the processes work and things to consider in practice
• Explanation of where the various rights are enshrined

Question 12

What is different about Arbitration compared to other ADR’s?

Answer 12

• In effect it’s private litigation
• Not really an ADR as it still costs money but does remain private
• Arbitration is absolutely binding - courts will enforce an Arbitration decision just as they would their own ruling.

Question 13

What is the Arbitration Act 1996?

Answer 13

Legal framework for arbitration, including process, the award and enforcement of that award. Based on 5 principles:

1) Fair, cost effective and fast
2) User friendly language
3) To follow Model Law where possible

Question 14

What is Model Law?

Answer 14

Universal legal approach to Arbitration intended to make it standardised in approach.

Question 15

Can you tell me some bodies that provide DRS?

Answer 15

• RICS
• CIArb
• RIBA

Question 16

What is the Slip Rule?

Answer 16

If an adjudicator makes a mistake in their determination, they can correct it within 5 days.