33. Conflict Avoidance and Dispute Resolution Flashcards
What would your considerations be prior to selecting a form of dispute resolution?
- The cost of dispute resolution in proportion to the claim being sought.
- The timescales involved.
- The impact on business relationships and reputation.
What is Conciliation? What are the benefits of it
A conciliation is a process whereby a third neutral party known as the conciliator will encourage two sides to come to an agreement between themselves.
Conciliation is similar to mediation but is normally used when there is a particular legal dispute, rather than more general problems. A conciliator will normally be there to encourage the two sides to come to an agreement between themselves, whereas a mediator will often suggest their own solution
Conciliation is where a third paty is appointed to help settle the disputes by persuading both parties to reach an agreement
The role of the conciliator is to facilitiate, evaluate and intervene with the conciliation session
Conciliators are regulated by the Arbitration and Conciliation Act 1996
What is Mediation?
In mediation, an impartial expert talks to both sides separately, as well as together if needed and helps come up with a solution that both can accept.
The role of the mediator is to be the facilitator of the mediation session
Mediators are regulated by the Code of Civil Procedure 1908
Mediation aims to reach an agreement between the parties and it’s enforceable by law.
What is dispute resolution?
- Actions and processes taken to resolve contractual disagreements between parties
What is negotiation?
- Negotiation is where the parties reach an agreement through an informal private discussion.
- Both parties will agree to settle the dispute either at a high level or in detail and agree to be bound by this settlement.
What is your most successful negotiation?
Cricklewood
During the tender stage of the Cricklewood project, which was under a lump sum payment mechanism the contractor missed off an item for the roof
During the construction stage it became apparent this was missed off and they wanted additional money to carry the item out
My position was as it was a lump sum and it was listed in the tender pack, they should have priced for it
Therefore we entered a negotiation to settle the dispute. I prepared myself by doing research and bringing in documents such as the tender pack and contracts
The contractor wasn’t pleased but to maintain relationships I offered to pay 50% as I had comitted myself to a project budget.
What could indicate the success of a negotiation on a final account?
- Both parties are satisfied with the outcome and feel that a fair and reasonable compromise was reached.
- A partnering approach is adopted with both parties feeling as though their long-term relationships and reputations have been maintained.
What is adjudication?
- Adjudication is a statutory form of dispute resolution procedure available in the United Kingdom.
- It is a relatively simple and efficient method of resolving disputes without engaging in lengthy and expensive court proceedings.
- Adjudication relies on an independent third party who considers the claims of both parties.
- A binding decision is made by the adjudicator which can be appealed either through litigation or
arbitration. - It has the advantage of being time sensitive with a decision being made within 28 days
What enforces the requirement for a building contract to contain provisions for adjudication?
- The Housing grants, Construction and Regeneration Act 1996 (Construction Act).
Which contracts does adjudication apply to?
- It applies to all construction contracts entered into after the act commenced within England, Scotland and Wales.
What if a building contract does not contain provisions for adjudication?
- Parties still have the statutory right to adjudication assuming the contract qualifies under the construction act.
- Failing this the Scheme for construction contracts will apply in its entirety.
Please describe the adjudication process
- Notice of adjudication - Process begins when the party referring the dispute to adjudication gives written notice of its intention to do so
- Appointment of the Adjuducator - This must be secured within seven days from the service of Notice of Adjudication
The adjudicator decisions must be made within 28 days. This may be extended with the consent of the adjudicator.
The decision is final and binding.
Give an example of how you have implemented conflict avoidance strategies early in a project to prevent disputes from escalating.
How do you avoid conflict?
