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RICS Core > 1 - Conflict Avoidance, Management and Dispute Resolution > Flashcards

1 - Conflict Avoidance, Management and Dispute Resolution Flashcards

1
Q

Tell me about the RICS Dispute Resolution Service

A
  • Oldest DRS in the world
  • Well established
  • Provides ADR in Land, Property and Construction
  • Offer Expert Witness, Adjudicators, Arbitrators etc
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2
Q

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

A
  • Technology and Construction Court
  • Handles disputes about buildings, engineering and surveying
  • Not normally cases with less than £250k

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

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3
Q

How do you avoid conflict?

A
  • Clarity of Client Brief
  • Understand 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.
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4
Q

Can you name me the types of ADR?

A
  • Mediation and Conciliation
  • Adjudication
  • Arbitration (although this can be seen as litigation)
  • Senior Representative
  • Expert Determination
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5
Q

Can you tell me the steps in the Adjudication process?

A
  • Dispute needs to crystalize first then:

Day 0 - Party sends Notice of Adjudication
Day 0-7 - Party sendd Referral Notice (details of claim)
Day 0-7 - Adjudicator appointed (agreed with other party)
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
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6
Q

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

A
  • 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
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7
Q

What is a Dispute Resolution Board?

A

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

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8
Q

Why might you appoint a Dispute Resolution Advisor?

A

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

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9
Q

What are the Three Pillars of Dispute Resolution?

A
  • Negotiation
  • Mediation
  • Adjudication
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10
Q

What RICS publications are there on Dispute Resolution?

A
  • Conflict of Interest
  • Conflict avoidance and dispute resolution in Construction
  • Acting as an expert witness
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11
Q

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

A
  • 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
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12
Q

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

A
  • 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.
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13
Q

What is the Arbitration Act 1996?

A

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

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14
Q

What is Model Law?

A

Universal legal approach to Arbitration intended to make it standardised in approach. Different countries have different laws so the provisions in this help this.

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15
Q

Can you tell me some bodies that provide DRS?

A
  • RICS
  • CIArb
  • RIBA
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16
Q

What is the Slip Rule?

A

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

17
Q

Difference between Adjudication and Arbitration

A
  • Adj used in 1st instance with arb as an appeal method
  • Adj exchange notices/letters over a short time period
  • Adj binding if lit/arb doesn’t commence before the time set out in the contract.
  • Arb issues notices over a lengthier period mirroring court proceedings
  • Arb has a hearing, whereas adj tends to not
18
Q

What is Mediation?

A

Agree to an independent mediator
Mediator helps assist process to resolve
Parties agree based on the conclusion
Non-binding

19
Q

What is Conciliation

A
  • Similar to mediation, where a conciliator seeks to facilitate a settlement, but takes a more active direct role.
  • Each party states position and then work towards a compromise.
  • The difference between the two is that in the event negotiations break down the conciliator will prepare a recommendation. No objections after 1 month then it becomes binding.
  • Only make a recommendation
20
Q

What is expert determination?

A
  • Refer a disagreement to an independent expert third party and will then be bound by the decision.
  • Collectively agree who is appointed.
  • Agree on finality
  • Written and Oral submission to determine on
21
Q

What if the contract doesn’t make provisions for adjudication in the contract?

A

Adjudication is a legal right under the Housing Grants, Construction and Regeneration Act 1996

22
Q

Have you ever experienced a conflict or a dispute?

A

I haven’t experienced formal ADR’s.

A consultant has discussed scope creep with me and I spoke with them about this with themselves and the client and ensured a fair price was agreed for the work.

23
Q

Can you tell me about the Construction and Engineering Arbitration Service?

A

RICS Service
14 Day process to appoint an arbitrator
RICS choose Arb who confirm they have necessary expertise
Parties look to agree
RICS appoints arb if not agreed

24
Q

In your experience what are some common causes of disputes?

A
  • Errors and conflicting information in tender docs
  • Poorly defined change control procedure
  • Contractual errors
  • Non conformity of contractual obligations
  • Poor workmanship
  • Poor contract admin
25
Q

What is adjudication?

A
  • Statutory procedure provided by a third party selected by the parties in dispute
  • No legal submissions / evidence examination
  • Expert can act in an investigative manner
  • Less expensive than Arb / Lit
26
Q

What is a GAP Analysis and Scope Gap?

A
  • (GAP) Method to assess if there is scope gap and how this can be remedied
  • (Scope) A gap in understanding of project expectations
27
Q

What is litigation?

A

Where negotiations have failed and there are no rights to adjudication or have agreed to another form of ADR like arbitration.
Parties are not allowed to litigate where there is an arbitration clause
High quality judges, legal costs recovered, claims brought against several parties

28
Q

What is arbitration?

A

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RICS Core (15 decks)

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