Conflict avoidance Flashcards

1
Q

How can a conflict be avoided?

A

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.

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2
Q

What are the three pillars of dispute resolution?

A

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.

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3
Q

What are the dispute resolution techniques?

A
Negotiation
Mediation and Conciliation - Both same in UK
Expert determination
Adjudication
Arbitration 
Litigation 
Dispute boards
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4
Q

What is ADR?

A

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.

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5
Q

What are some examples of ADR?

A

Negotiation
Adjudication
Mediation
Or other contractual dispute technique

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6
Q

What is Negotiation?

A

Dispute resolution technique

Process whereby parties work out between them how to resolve issues arisen. Power to settle rests with the parties.

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7
Q

Explain Mediation and Conciliation

A

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.

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8
Q

Explain Expert determination

A

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.

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9
Q

Explain Adjudication

A

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)

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10
Q

What is the TCC?

A

The Technology and Construction Court - Part of the High Court that deals with construction related litigation.

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11
Q

Explain Arbitration

A

Dispute resolution technique

Contract contains written statement of agreement to arbitrate. Resolves dispute outside the courts. Award given by arbitrator.

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12
Q

Explain Litigation

A

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.

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13
Q

Explain Dispute boards

A

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.

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