Conflict Avoidance Flashcards
What is the difference between arbitration and adjudication?
Arbitration is both sides agree to let an impartial third party, the arbitrator, decide the case. Can be a lawyer or expert in field. Decision is legally binding, takes place outside of court.
Adjudication is usually a court based litigation, legally binding, long process, usually more expensive
What other types of informal and formal ADR are there?
informal - Negotiation, mediation
formal - arbitration, adjudication
What are the advantages/disadvantages of ADR?
Negotiation - cheap, no independent party
Mediation - informal, cheap
Arbitration - legally binding, cost effective
Adjudication - Expensive, legally binding
Can you give me an example of good client management?
Set out brief early, good communication, set out expectations early, regular meetings
How does mediation work?
3rd party mediator negotiates between parties, voluntary, legally binding if agree it is beforehand
Is mediation legally binding?
No
What is adjudication?
Dispute resolution mechanism that applies to construction industry. Legal process of a dispute, carried out in court. Decision is binding
What is expert determination and is it legally binding?
Technical expert makes binding decision (unless parties agree before decision isn’t binding), based on information submitted.
What is arbitration and is it legally binding?
Independant party outside of court makes binding decision on parties dispute.
RICS have a statement on conflicts of interest, what are the 3 areas of conflict?
- Party Conflict
- Own Interest Conflict
- Confidential Information Conflict
What is the redress scheme and when would you use it?
It is the final stage of a complaints handling procedure, used for consumer to business complaints. Property ombudsman is one scheme that can be used to handle complaints
When would ADR be used?
Used to solve disputes, business to business complaints. RICS Dispute resolution service is a scheme you can use
What is negotiation?
Problem solving efforts of parties themselves
What is a conflict of interest?
a set of circumstances that creates a risk that an individual’s ability to apply judgement or act in one role is, or could be, impaired or influenced by a secondary interest.
What are the four types of negotiating outcomes?
Lose-lose, win-lose, stalemate, win-win
Tell me some good negotiating skills?
- research and preparation
- prepare fall back situations
- determine what is/isn’t negotiable
- partnering approach
Give us an example of a negotiation you led successfully
Builder didn’t want to take wall down to clean cavity, I said they could try through coring holes, if sufficient then that would be okay
What are the 3 pillars of ADR from RICS Guidance on dispute resolution
Negotiation, mediation, adjudication
What is the difference between mediation and conciliation?
Mediator is just there to mediate, gives no opinion. Conciliator can give their opinion
What are the dispute resolution forms under JCT contract?
- Adjudication, mediation, arbitration, litigation. Adjudication is mandatory under the Construction Act
What time scales are involved with Adjudication?
Notice given of adjudication to opposing party within 28 days. Adjudicator appointed within 7 days. Decision given within 28 days.
What type of negotiator are you?
I would say I’m an analyst. Other types are accommodator and assertive
