ADR SoE Q's

Question 1

What is dispute resolution?

Answer 1

Dispute resolution is a term which refers to several processes that can be used to resolve a conflict, dispute or claim.

Question 2

What are some forms of ADR?

Answer 2

1. Negotiation
2. Mediation
3. Conciliation
4. Adjudication

Question 3

What is the Technical and Construction Court (TCC)?

Answer 3

Handles disputes related to buildings, engineering and surveying.

Normally does not handle cases with a value below £250,000 unless there is a good reason.

Question 4

What are the 3 pillars of dispute resolution?

Answer 4

1. Negotiation
2. Mediation
3. Adjudication

Question 5

What is negotiation?

Answer 5

The process where the named parties under the contract work out between them how to resolve an issue that has arisen. Power to settle sits with each party. Ends when both parties come to agreement. Suitable for simple matters which are easily resolvable, and compromises can be made. Requires the cooperation of both parties.

Question 6

What’s the difference between mediation and conciliation?

Answer 6

Under conciliation the conciliator can provide advice and recommendation.

Question 7

What is Adjudication?

Answer 7

Form of ADR developed to allow for construction contract disputes to be resolved more quickly and cost-effectively than resolution through arbitration or litigation. Its objective is to provide a fast-working solution to an issue so that the parties can quickly resume or continue works under the contract.

Question 8

What is the adjudication process?

Answer 8

A cheaper and quicker alternative to traditional dispute resolution procedures.
One party initiates the adjudication process. Within 7 days they must state the details of the reason they wish to adjudicate, whilst appointing an adjudicator.
Once an adjudicator is appointed, they will request a response from the opposing party.
When all information is received the adjudicator will make a decision within 28 days.
The decision is binding, unless there has been an error in judgment.

Question 9

Is adjudication binding?

Answer 9

The adjudicators decision is binding on the parties and enforceable in court unless the adjudicator acted outside of their jurisdiction or was proven biased towards one party.

Question 10

What are the timescales for adjudication?

Answer 10

28 days following the appointment of the adjudicator however can be increased 14 days to 42 days by agreement with the referring party. Further extensions can be granted with approval from both parties.

Question 11

Who pays for adjudication?

Answer 11

Both parties are jointly liable for the adjudicator’s fees, however the adjudicator can decide who is to pay their fees and reasonable expense.

Question 12

What does the Construction Act stipulate in terms of ADR?

Answer 12

All parties within the contract have the right to adjudication at any time.

Question 13

What legislation governs adjudication?

Answer 13

Housing Grants, Construction and Regeneration Act 1996 (HGRCA) was introduced in May 1998. The Local Democracy, Economic Development and Construction Act 2009. Known as ‘the Construction Act’.

Question 14

What is arbitration?

Answer 14

Arbitration is a lawsuit without court involvement. Parties either agree via the contract before dispute or agree to arbitration without pursuing through court. The parties agreement give the arbitrator the power to make a decision which is binding on all parties

Question 15

What are the advantages and disadvantages of adjudication?

Answer 15

Advantages
Less costly than traditional dispute processes.
Less time consuming than traditional dispute processes.

Disadvantages
Can only adjudicate on one claim at one time.
Non referring party only has 7 days to answer claim.

Question 16

What are the benefits of arbitration?

Answer 16

Private.

Quick in comparison to litigation.

Parties can agree on an arbitrator with relevant expertise in the matter.

The arbitrator award can be enforced as a judgement of the court.

Question 17

What is litigation?

Answer 17

Parties commencing a claim in the civil courts. The nature, complexity and value of the dispute will determine which court will hear a particular dispute.

Question 18

What are the different forms of dispute resolution?

Answer 18

• Arbitration, litigation and adjudication

Question 19

How does JCT deal with ADR?

Answer 19

There are differing options, these being negotiation, mediation and adjudication.

Question 20

What are the differences between arbitration and litigation?

Answer 20

The difference is that litigation is conducted in the courts, whereas arbitration is a private process. There must also be an agreement between the two parties to arbitrate.

Question 21

How can recognising conflict early aid a project?

Answer 21

It can be addressed earlier and could be resolved through negotiation as opposed to formal dispute resolution processes.

Question 22

Can you give me some examples of how to avoid disputes?

Answer 22

State what is required of all parties in the tender and contract documents
Act within your scope of competence
Communicate effectively
Follow RICS guidelines
Follow your company’s guidelines

Question 23

What is ‘Expert Determination’ and ‘Dispute Boards’?

Answer 23

Expert determination is where the parties agree to appoint an independent expert to review the details of the case.
The parties are legally bound by the decision.

Dispute boards are the preferred dispute process under FIDIC.
They consist of three members, two technical and one legal. Legal is usually the chair.
The aim is for them to resolve disputes in a proactive manner, meeting regularly with the teams to provide advice on matters than may lead to conflict.