5. Conflict Avoidance, Management and Dispute Resolution Flashcards
Where can you find guidance on conflict avoidance & dispute resolution?
RICS Guidance Note - Conflict avoidance and dispute resolution in construction
What is conflict?
When two or more parties have a difference of opinion that can lead to disagreement.
What can conflict lead to?
- Arguments
- Negotiation
- Dispute Resolution
- Innovation
Can conflict be good?
- Provide solutions to problems
- Challenging old processes
- Creates new opportunities
How can conflict be bad?
- Prevents collaborative working
- Time consuming – detrimental to project objectives
- Expensive – certain dispute resolution methods
What are the different conflict avoidance techniques?
- Good Payment Practice – cash flow key.
- Record Keeping – prevent unnecessary disputes.
- Clear Contract Documentation – prevents ambiguities.
- Regular Reporting – minutes/reports – manage expectations and team actions.
- Good Management – proactive managing duties to meet client expectations.
- Partnering and Alliancing – cooperative teamworking approach.
- Good Project Management – proactively managing time, money and risk.
- Good Client Management – understanding client brief and good communication.
What is a dispute?
a disagreement, argument, or debate.
What is dispute resolution?
Process of resolving contractual disagreements between parties.
What is the spectrum of dispute resolution?
Three distinct processes a=which all dispute resolution techniques built upon
1. Negotiation
2. Mediation or Conciliation
3. Adjudicative Processes
Also known as three pillars of dispute resolution.
What are the three pillars of dispute resolution?
Provide answer for spectrum of dispute resolution.
• Negotiation – problem solving efforts of parties themselves.
• Mediation or Conciliation – 3rd party facilitated but no binding decision.
• Adjudicative Processes – 3rd party determines final binding decision.
What methods of dispute resolution are available under each pillar?
Negotiation Neutral fact-finding Expert appraisal Early neutral evaluation - Mediation Conciliation - Adjudication Expert Determination Dispute Review Boards Arbitration Litigation
How would you determine dispute resolution technique?
As per Spectrum of Dispute Resolution:
• Negotiation – primary resolution, where not successful potentially:
- Mediation / Conciliation – perhaps more economical to appoint mediator where yet to determine if dispute can be resolved without continuing cost and management time, also if parties believe they can come to binding decision between themselves.
- Where dispute cannot be resolved without 3rd party leading process and binding decision via adjudicative processes.
What are Alternate Dispute Resolutions (ADR)?
Dispute resolution methods alternate from conventional procedures of arbitration and litigation:
• Negotiation
• Mediation
• Adjudication
Why would you use ADR techniques?
Typically, faster and more economical form of dispute resolution as well as maintain business relationships in comparison to traditional methods such as arbitration and litigation.
What is Negotiation?
Problem-solving efforts of parties themselves to reach a compromise or agreement.
What are the advantages of negotiation?
- Maintains business relationships
- Quick process
- Cheap
- Confidential process
What are the disadvantages of negotiation?
- Non-binding
* Both parties need to agree to negotiate
What is the process of negotiation?
- Preparation – understand issue and liability
- Discussion and clarification of objectives
- Negotiation – competitive or principles
- Agreement
What is Mediation?
3rd Part intervention that facilitated discussion but does not impose binding decision.
What are the advantages of Mediation?
- Independent party – typically expert in field
- Confidential
- Maintain Business Relationships
- Quick process (typically 1-2 days).
- Less expensive that traditional methods
What are the disadvantages of Mediation?
- Abortive time and cost where agreement not made.
* Information disclosed can later be used in litigation as evidence.
What is Conciliation?
Process in which a Conciliator facilities discussions through 3rd party broker, does not impose binding decision.
What is the difference between Mediation and Conciliation?
Mediation brings parties together.
Conciliation does not bring parties together – 3rd part acts through broker.
What is Adjudication?
- Resolution process where neutral 3rd party makes binding decision on parties.
- Construction Act 1996 – Introduced right to adjudicate.
- Successful party can apply to TCC to enforce decision.
- Decision binding unless revised in arbitration or litigation.
- Where no provision in contract – can adjudicate under Scheme for Construction Contracts.
What are the advantages of Adjudication?
- Binding Decision
- Confidential
- Quick and less expensive than arbitration and litigation.
What are the disadvantages of Adjudication?
- Can only focus on one issue at a time.
- Both parties must recognize dispute.
- Adjudicator limited powers – TCC may need to enforce.
What is the Adjudication processes?
- Dispute – must be recognized by both parties.
- Notice of Adjudication - must be issued.
- Adjudicator appointment – 7 days from issuing notice.
- Decision – Adjudicator to give 28 days from referral.
What is arbitration?
- Disputes are determined by a private tribunal chosen by the parties.
- Arbitration Act 1996 – legal framework and enforcement of award.
- Written agreement from both parties required.
- Award final and binding as that of court judgment.
- Must include in contract disputes to be awarded by arbitration and not legal proceedings.
What are the advantages of Arbitration?
- Confidential
- Many issues over adjudication
- Quicker than court proceedings
- Highly flexible over court proceedings
- Final decision binding
What are the disadvantages of Arbitration?
- Costs may be similar to litigation.
* Limited right to appeal
What is the process for Arbitration?
- Notice of Arbitration – identify dispute and other party to agree to arbitration.
- Within 14-days arbitrator agreed by both parties – otherwise named in contract.
- Formal submission by both parties.
What are the three available Arbitration procedures?
- Documents only (30 days)
- Short hearing (30 days) and
- Full procedure (long).
What are the five objectives of arbitration act?
- Fair, cost-effective and quick.
- Confidentiality.
- Courts have supportive powers.
- User friendly language
- Follow model law.
What is the difference between adjudication and arbitration?
Adjudication is meant to be quicker and cheaper than arbitration or litigation, as adjudicators must reach a decision within 28 days. Adjudication decisions can be appealed and taken to arbitration or litigation.
What is Litigation?
- Technology and Construction Court (TCC) - inherent jurisdiction.
- £250,000 minimum disputes.
- Default in contracts subject to parties agreeing to adjudication and arbitration.
- Pre-Action Protocol must be met before proceedings are instituted.
- Judge determines final binding decision + awarding of legal costs. (generally winning but not necessarily entirety).
What are the advantages of Litigation?
- Final decision legal and binding.
- Claim process managed by judge throughout.
- Deal with complex issues.
What are the disadvantages of Litigation?
- £250,000 Minimum Claims - dealt with by TCC (below is county court).
- Slow process.
- Most expensive way of resolving dispute.
- Public Court – not confidential.
What is the Pre-Action Protocol?
A pre-action protocol outlines specific procedures to be followed before issuing legal proceedings
• Claimant letter including key documents.
• Within 28 days defendant to reply.
• Within 14 days Claimant to reply to any new issues.
• Parties meet to try and reach settlement on aspects of dispute.
• Discuss where ADR alternatives to litigation may be a more appropriate solution.
What is Court Annexed ADR?
• TCC instances where previously offered Court Annexed Mediation.
• All disputes dealt with under TCC can voluntarily submit to court settlement process:
o One judge undertakes evaluation and attempts to resolve despite.
o Achieved = TCC can record and court order issued closing matter.
o Not Achieved = Different judge for settlement under litigation.
What is Expert Determination?
Parties agree by contract 3rd party will make a binding decision on the issue – creature of contract.
What are the advantages of Expert Determination?
- Quick process
- Less formal adjudicative process
- Less expensive than adjudication
What are the disadvantages of Expert Determination?
- Difficult to challenge Experts decision
* Further court or arbitration proceeding may be required to reinforce decision
What are Dispute Boards?
Typically comprising three independent and impartial persons selected by the contracting parties.
What are the different types of Dispute Board?
- Dispute review boards (DRB) make recommendations rather than binding decisions.
- Dispute adjudication boards (DAB) make a binding decision about any referred dispute.
- Combined dispute boards (CDB) could make a recommendation or a binding decision.
- Dispute resolution advisor (DRA) is a single person dispute board.
What does JCT recommend for ADR?
- Where dispute or difference can’t be resolved under negotiation;
- Both parties to give serious consideration to Mediation, otherwise;
- Should either party wish to refer to adjudication – the scheme shall apply, otherwise;
- Should either party wish to refer to arbitration – the scheme shall apply
Can you tell me the dispute resolution procedure listed in one of your contracts and who the nominated body is?
- Adjudication as default by JCT
* Adjudicator is the RICS.
What dispute resolution method takes precedence under JCT?
Express reference to adjudication in the Articles of Agreement, together with a further express reference to arbitration or legal proceedings
Arbitration or Adjudication first?
“If disputes and differences are to be determined by arbitration and not by legal proceedings, it must be stated that Article 8 and clauses 9·3 to 9·8 [Arbitration] to apply.)
What is the different legislation enforcing requirements for dispute resolution?
- The Construction Act 1996
- Scheme for Construction Contracts
- Arbitration Act 1996
What is the Construction Act 1996?
- Introduces right to statutory adjudication in construction contracts.
- Construction Act 2009 – repealed requirement for contracts to be in writing = applicable.
What is the Arbitration Act 1996?
The Arbitration Act 1996 is an Act of Parliament which regulates arbitration proceedings
What is the Scheme for Construction Contracts?
Provides fall-back provisions where the contract itself does not include the necessary payment and adjudication provisions.
