Conflict avoidance Flashcards
How can a conflict be avoided?
Through conflict avoidance processes:
Good Management - Proactive in fulfilling duties. Raising issues of concern early.
Clear Contract documentation - Identify main areas of risk and set strategies (e.g. risk register).
Partnering and alliancing - Building co-operation between participants.
Good project management - Proactive management time, money and risk.
Good client management - A good understanding of client objectives and approach to risk to determine how risks can be dealt with in contract docs and during project. Good communication.
Good constructor management - Objective assessment of progress and proactively dealing with issues.
Good design team management - Provision of information within the design team and from the design team to the constructor. Plan and manage potential conflicts between constructor and designers.
Good payment practice - design team and constructor rely on cash flow. Valuations and payments made promptly.
Record keeping - Keep record labour, plant and materials in project. Regularly obtain progress reports and daily site activities.
Regular reporting and proactivity - Keep informed.
What are the three pillars of dispute resolution?
Negotiation - problem solving efforts of the parties themselves. e.g. Neutral fact finding, expert appraisal, early neutral evaluation.
Mediation and conciliation - third party intervention does not lead to binding decision.
An adjudicative process - final outcome determined by third party who impose binding decision. e.g. litigation, expert determination, ombudsman, arbitration.
What are the dispute resolution techniques?
Negotiation Mediation and Conciliation - Both same in UK Expert determination Adjudication Arbitration Litigation Dispute boards
What is ADR?
Alternative Dispute Resolution
Refers to processes which are alternatives to traditional binding dispute resolution procedures such as litigation or arbitration.
Alternative, as in, it provides a faster and more economic approach and maintain business relationships.
More recently the debate has moved toward appropriate over alternative. E.g. what is the most appropriate
approach.
What are some examples of ADR?
Negotiation
Adjudication
Mediation
Or other contractual dispute technique
What is Negotiation?
Dispute resolution technique
Process whereby parties work out between them how to resolve issues arisen. Power to settle rests with the parties.
Explain Mediation and Conciliation
Dispute resolution technique
Parties agree on independent, third party neutral system to facilitate discussions between them, with the goal of reaching a settlement. Power to settle remains with parties, but process led by mediator.
Explain Expert determination
Dispute resolution technique
Parties agreed by contract that a third party will make a binding decision on them. Most cases expert decision is final and not possible to appeal.
Explain Adjudication
Dispute resolution technique
Introduced s.108 Housing Grants, Construction and Regeneration Act 1996.
Applies not only to construction contacts but also professional appointments.
If the Act applies to the contract - e.g. selected in JCT, then either party can request the appointment of an adjudicator to be made within 7 days of serving a Notice of Dispute. Adjudicator has 28 days from issue of the Referral within which to issue a decision.
The decision will bind parties and, in most cases, be readily enforceable in the Technology and Construction Court (TCC)
What is the TCC?
The Technology and Construction Court - Part of the High Court that deals with construction related litigation.
Explain Arbitration
Dispute resolution technique
Contract contains written statement of agreement to arbitrate. Resolves dispute outside the courts. Award given by arbitrator.
Explain Litigation
Dispute resolution technique
Parties can refer the matter of dispute to court. Procedure governed by CPR. Nature complexity and value of dispute will determine which court will hear the dispute.
Explain Dispute boards
Dispute avoidance and resolution technique
Dispute Review Boards (DRBs) - Three dispute board members are appointed at the start of the project. The become familiar with the project by reviewing documentation and site visits. When issues arise they make non-binding recommendations. Often asked to resolve disputes between parties to avoid formal disputes.
Dispute Adjudication Boards (DABs) - Same as above but they make formal written decisions that bind parties.