Conflict Avoidance Flashcards
What is dispute resolution?
Actions to resolve contractual disagreements between parties
What is conflict avoidance
Actions to prevent a conflict occuring and avoid ambiguit. Main CA processes:
- Good management - proactively planning
- Clear contract documentation - omit ambiguities, identify main areas of risk and strategy to dealing with them.
- Good Project Management - proactively planning and managing all aspects of time, money & risks and allocating responsibility.
- Client management - understanding clients objectives & approach, maintaining clear communication.
- Contract management - good understanding of the project, contract and program to ensure poractively working together as a team. Regular review of objectives.
- Good design team management
- Good payment practice
- Good record keeping & ensure ALL team understand reasons why.
What are the different forms of dispute resolution?
Negotiation Mediation Adjudication Arbitration Litigation Dispute Boards
What is adjudication?
Introduced by construction act as
a quicker way to resolve disputes.
Appointment of independent adjudicator who considers the evidence and makes decision which is binding on all parties. Default form of dispute resolution in JCT contracts!
A statutory procedure for swift dispute resolution. Provided by a third party adjudicator selected by the parties. Decision is binding until it is revised by arbitration or litigation. Whole process can take up to 28 days and the decisions are binding.
A party to a construction contract has the right to refer a dispute arising under the contract for adjudication.
What is arbitration?
Private face of litigation - Involves parties agreeing to refer dispute to a 3rd party and agree to be bound by arbitrator’s decision. Parties can decide whether it is a documents only (30 days) procedure or the full procedure.
Both parties must agree to arbitrate
Parties have wide range of control over the way the proceedings are conducted
Governed by the Arbitration Act 1996
A form of alternative dispute resolution which resolves disputes outside courts. The dispute will be decided by one or more persons ‘arbitrators’. It can either be binding or non-binding.
What is litigation?
Formal court proceeding to resolve a dispute. One party can start it and the other’s prescience is not voluntary. Goes to the technology and construction court
How do you avoid conflict?
Good management Clear contract docs Partnering Good record keeping Proactive planning & management of contract, program & design team Good payment provisions Regular and clear communication channels
What is the conflict avoidance panel?
A system created by the RICS and TfL to raise potential conflicts before they become conflicts.
What has the construction act changed?
The right to adjudicate & payment provision
What dispute resolution procedures are mentioned in the JCT?
Mediation (strongly recommended)
Adjudication (parties have a right, contract says how to notify)
Arbitration (contract says how to notify)
What are the adjudication timeframes?
Notice of adjudication is given
Adjudicator appointed
Within 7 days of notice referring party must issue referral and information
Adjudicator has 28 days to make a decision
This can be extended by 14 days by referring party
Following crystallisation of a dispute, either party can serve notice of it’s intention to refer the dispute to adjudication.
Within 7 days of serving notice, the referring party must serve it’s Referral (their case). This must contain a detailed explanation of the claim and supporting documentation.
Also within that 7 day period, the referring party must secure the appointment of an adjudicator. This will be the person or nominating body named in the contract.
The adjudicator then sets out a timetable, usually permitting the other party to issue a Response to the referral, the referring party to issue a Reply and for the other party to issue a Rejoinder to that Reply.
Adjudicator may only permit one submission per party.
Adjudicator must make decision within 28 days of Referral. This can be extended to 42 days with the permission of the Referring party or further with the agreement of both parties.
Adjudicator’s decision is binding and enforceable in court.
No appeals process however parties are able to take the same dispute to litigation.
What is pre-action protocol?
Process to be followed before suing a consultant for negligence
Designed to speed up litigation and stop wasting court time
What court applies to construction industry?
TCC - Technology and Construction Court & part of high court
What part of JCT SBC mentions dispute resolution?
9.2 & 9.3
What is a CMT?
A client’s monitoring team. They’re used for D&B projects when the design team are novated.
