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.
What is the FIDIC contract’s preferred method of dispute resolution?
Dispute resolution boards
What notices are issued in the adjudication process?
Notice of adjudication
Notice of referal
What is the difference between mediation and conciliation?
Mediator facilitates
Conciliation evaluates
What is mediation?
Alternative dispute resolution procedure whereby a neutral 3rd party assists the disputing party through communication and negotiation. Voluntary and non-binding. Mediator does not give opinion.
What is adjudication?
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 alternative dispute resolution?
A range of techniques for resolving disputes without seeking redress from the courts. Adjudication Arbitration Mediation Negotiation
What is conflict Avoidance
Preventing a disagreement / issuing creating conflict Good management Clear & transparent communnication Good Risk management Clear contract docs Manage clients expectations Collaborative working Good record keeping Good payment practice
What is Dispute resolution
Dealing with a conflict once it escalates and cannot be resolved between parties.
What is the difference between adjudication & arbitration
Arbitration is a procedure in which both sides agree to let an impartial third party, the arbitrator, decide the case. (Can take a lot longer)
In adjudication, the decision is the responsibility of a judge, magistrate, or other legally-appointed or elected official. - An adjudicator’s decision is binding unless and until it is superseded by the final decision of a court judgment
What is the process of Adjudiction & timescales
Usually set out in contract and decision can be reached within 28 days
What does a Complaints Handling procedure involve
Raise issue to immediate manager
Response to complaint within an agreed timescale as set out in a CHP
If not resolved raised to Director
Response as per CHP
If still not resolved, seek resolution as per DR in contract or property ombusman & notify PII insurer
What is the best way to avoid conflict?
Clear & consise communication & drafting of contract
Understanding risks and things that could go wrong & plan for them
Manage parties expectations
Negotiating contract terms clearly and transparetly - help avoid misunderstandings / conflict
Keep good records with sufficient details
How do you get unambiguous contracts?
Poor communication, unclear terms and documents that do not clearly & consisely express how risks to be dealt with & responsibilities.
If you noted that there were ambiguities, what would you do?
Raise the ambiguity with the client
Identify presedence of information withint the contract
Clarify ambiguity with all parties and ask for conformation of clarification is a simple issue.
How does record keeping avoid conflict?
Clear and factual records to avoid relying on memory
Clarifies position & record of verbal communication, photoghraphic eveidence worth 1000 words
What do you understand by the term ADR?
Alternative (or appropriate) Dispute Resolution
Can offer a quicker resolution than ongoing negotiations between parties
Informal as ouitside of courts & cheaper
Although decision often made by a surveyor rather than a judge
Mediation / Concilliation - concill - gives her / his opinion
What are the different ADR processes?
Negotiation - fact finding / expert appraisal / neutral evaluation
Mediation - Concilliation / mediation
Adjudicative process - Adjudication/ ombudsmen / DR boards / expert determination / arbitration / litigation
What are the principal differences between them?
Negotiation & Mediation - undertaken by parties & may involve a faciltator / surveyor - quicker & cheaper - can be binding if parties agree
Adj - involve a judge / court and can be costly but legally binding & result in award
Which ones are binding?
Litigation in the court,
Arbitration and expert determination areall final. In other words, any dispute referred to these processes will result in a final and binding decision, with very little opportunity to appeal or overturn the decision.
Can you give me some examples of good practice associated with conflict avoidance?
Preventing a disagreement / issuing creating conflict Good management Clear & transparent communnication Good Risk management Clear contract docs Manage clients expectations Collaborative working Good record keeping Good payment practice
Can you name the three pillars of dispute resolution?
Negotiation - fact finding / expert appraisal / neutral evaluation
Mediation - Concilliation / mediation
Adjudicative process - Adjudication/ ombudsmen / DR boards / expert determination / arbitration / litigation
What current challenges is Covid and/or Brexit bringing to Conflict avoidance, management and dispute resolution procedures?
Dealing with covid delays - force majeure?
Ambiguity around procedures
Cashflow processes - more cases
Starting to see it includied as an amendments that FM excludes Covid
Difficulty where all working remotely
Inability for contractors to meet contract obligations / prgram with extended lead times / availabilty
Increased costs & time and cost spent trying to agree recvery with client has seen businesses go under.
Named as DR in contracts
JCT - Mediation / Adjudication / Arbitration
NEC 4 - Adj & Arb
FIDIC - DR Board & Adj board
