7. CADR Flashcards
Please provide examples of conflict avoidance techniques.
Providing clear contract documentation, such as scope and risks.
Issuing instructions with clarity, to avoid confusion.
Being respectful in quotation negotiations.
Try to negotiate an agreement before going legal.
Payments made on time.
EWNs / RRMs / Good and transparent communication.
What did you learn from GN on Conflict Avoidance and Dispute Resolution in Construction, 1st edition?
Three pillars of dispute resolution:
Negotiation - yourself
Mediation (also conciliation) - non-binding
Adjudication (also arbitration and litigation) - binding
Name alternative dispute resolution (ADR) procedures. What governs them?
(6) Negotiation, mediation, conciliation, adjudication, arbitration, litigation.
The Civil Procedure Rules (1998)
What is mediation?
Independent third party person facilitates a conversation with both parties to try and work it out. Doesn’t decide. Cheapest, quickest, avoids court.
What is conciliation?
Similar to mediation, but the difference being the Conciliator will propose a settlement.
What is adjudication?
Independent person gives decision on a dispute. Can be a judge so usually follows set rules and procedures, like the court would, even though it hasn’t gone to court. Decision is binding, but can be appealed.
What is arbitration?
Independent person gives decision on a dispute. Can argue arbitrators hold stronger powers than adjudicators because they have more flexibility. Decision is binding.
What is the difference between adjudication and arbitration?
Adjudication comes first! To get to arbitration, you go through adjudication first.
Adjudication follows more set procedures, so the adjudication has less flexibility than an arbitrator would.
Adjudication can be made public, whereas arbitration is a private procedure.
Timeframes.
What is the time difference between adjudication and arbitration?
Adjudication. 7 days to appoint adjudicator. 28 days for adjudicator to make decision (can be extended to 42 days). Can be extended further if both parties agree.
Arbitration can take months.
What is litigation? Where is it done?
Going to court. Construction and Technology Court.
What is W1 and W2 in the NEC contract?
Dispute Resolution
Option W1 - for use on projects that are NOT subject to the HGCRA 1996 (Construction Act 1996)
Option W2 - for use on projects where the parties ARE subject to the HGCRA.
What Dispute Resolution is named in your contracts / subcontracts? And where is it?
Adjudication. W2 (as we ARE subject to the HGCRA).
Also found in CD Pt 1 which says the Adjudicator nominating body is ‘The Technology and Construction Solicitors’ Association (TeCSA)’
What mediation process is referred to in Option W2?
Centre of Effective Dispute Resolution (CEDR) Model Mediation Procedure.
W2.5 ‘the Parties may, at any time, attempt to settle a dispute by mediation in accordance with the CEDR Model Mediation Procedure’
What dispute resolution is there in JCT & FIDIC?
JCT
- Negotiation. Mediation. Adjudication. Arbitration. Court.
- The process is outlined in the Subcontract particulars. Under the Construction Act, you have a right to go to Adjudication.
FIDIC
- Adjudication. Arbitration. Litigation.
- They have a Dispute Adjudication Board (DAB).
How can choice of procurement route and use of processes such as partnering help conflict avoidance?
Partnering is based on trust, openness and co-operation between client and contractor.
