Conflict Avoidance Flashcards
Name some common causes of dispute?
Misunderstanding of the brief
Miscommunication
Poor performance
Contract errors or omissions
Give some conflict avoidance processes you would put in place?
Ensuring good communication lines & defining roles & responsibilities
Understanding objectives (brief) and attitude to risk
Record keeping
Regular reporting and proactivity
Clear contract documentation
Name some dispute resolution methods
Negotiation
Mediation
Adjudication
Arbitration
Litigation
What is Adjudication?
Dispute resolution procedure:
Included in all construction contracts by law - Housing Grants Act
Resolved by adjudicator within 28 days of receipt
Decision binding - can seek another review
No legal costs
Quick, Cheap, Private
Process:
o Party referring dispute serves notice
o Adjudicator elected in 7 days
o Referring party has 7 days to set out case in detail
o Responding party has 7 days to respond
o 28 days for decision from referral notice being served
What is Arbitration?
- More formal, contract based dispute resolution process that mirrors litigation
- Governed by the arbitration act 1996
- Both sides agree to let third party adjudicator decide the case
- Legally binding – limited rights to appeal
- Arbitrator has power to award legal costs
- Process
o Claimant files for arb
o Defendant files to answer request
o Both parties select arbitrator
o Arbitrator & parties decide timetable and schedule of hearings
o Parties put forward arguments & challenge evidence
o Arbitrator makes decision
What is litigation?
Mirrors arbitration but:
- Decided by a judge
- Must have attempted to resolve all other forms before litigation is taken
- Public process = expensive, inflexible and confrontational – potentially damages future relationships
Can conflict be a good thing?
- Not really, creative tension can be good to test design though
Difference between adjudication & arbitration?
- Adjudication is not as formal, arbitration similar to litigation
- Adjudication can be appealed more easily, cannot be enforced without court judgement
- Adjudication automatically applies to all construction contracts, under the Housing Grants Act. Arbitration requires both parties to have signed up to it
Benefits of adjudication over arbitration?
- Adjudication faster, whilst arbitrator typically makes decision within 45 days of closing the proceedings
- Arbitration is far more formal, with strict rules of evidence
- Adjudication allows works to continue whilst the two parties resolve the conflict
- You & the other party are liable for the fees and legal costs associated, which can be awarded through the decision
Role of RICS in dispute resolution?
- Issues guidance notes on how to resolve disputes
- Training
- RICS Dispute Resolution Services
o Offers mediation, adjudication and arbitration
When is a surveyor used as an Expert Witness?
- Someone with specialised knowledge in an area who is appointed by a party within a dispute in order to give an opinion to the tribunal on a topic
- Has a duty to remain impartial, state facts and act without bias
- If appointed as Expert Witness a surveyor must:
o Advise the client that the RICS Practice Note will apply
o Supply them with an RICS Expert Witness client guide
o State that the usual complaints handling procedure won’t apply, as their duty is to be impartial rather than to the client
o Check no conflict of interest
What is a surveyor advocate?
- Surveyor advocate is appointed by a party to put forward the client’s case
- They have a duty to the tribunal and also their client
- They must act in the client’s best interest, should advance their client’s interest through proper means
What is the M3 conflict avoidance procedure?
- We have a formal Complaints Handling Procedure, outside of the RICS procedure as not an RICS firm:
o Inform line manager and project director for excellence
o Acknowledge complaint within 5 days
o Formally respond within 14-18 days
o Formally record and investigate
o Internal lessons learnt session
