Conflict Avoidance

Question 1

What are the main conflict avoidance processes?

Answer 1

• Good management
• Clear contract documentation
• Partnering
• Good payment practice
• Record keeping

Question 2

What are the methods of dispute resolution?

Answer 2

• Negotiation
• Mediation/Conciliation
• Adjudication
• Arbitration
• Litigation

Question 3

What does the RICS conflict avoidance and dispute resolution guidance note discuss?

Answer 3

• How to avoid disputes
• The types of alternative dispute resolution

Question 4

How can RICS solve disputes?

Answer 4

Using the RICS Dispute Resolution Service. It includes a number of different ADR options

Question 5

What is the difference between mediation and conciliation?

Answer 5

Mediation facilitates conversations, whereas conciliation involves direct intervention and suggestions from a third party

Question 6

What are the pros and cons of negotiation?

Answer 6

Pros:
- Fast
- Confidential
- Maintains good relationships
Cons:
- Not binding
- No guarantee of a solution
- Dependant on the parties’ willingness to cooperate

Question 7

What are the Pros and Cons of mediation?

Answer 7

Pros:
- Cheaper than other methods
- Confidential
- Preserves relationships
Cons:
- Can depend on the quality of the mediator
- Not binding

Question 8

What are the pros and cons of adjudication?

Answer 8

Pros:
- Relatively quick
- Decision is binding until legal overturning
- Private
Cons:
- The adjudicator can’t go outside the jurisdiction of the contract
- Not a legally binding decision

Question 9

What are pros and cons of arbitration?

Answer 9

Pros:
- Private
- Faster than litigation
- Judgement is legally binding
Cons:
- Limited opportunity for appeal

Question 10

What if there was a mistake in the arbitrator’s decision?

Answer 10

They can amend their decision within 28 days if there was a clerical error, or to remove ambiguity

Question 11

What act governs arbitration?

Answer 11

The Arbitration Act 1996

Question 12

What act governs adjudication?

Answer 12

The Construction act 1996 and the scheme for construction contracts 1998

Question 13

What is the cause of most disputes?

Answer 13

• Commercial disagreements
• Contractual ambiguity
• External pressures

Question 14

What is the TCC?

Answer 14

Technological and Construction Court. They hear cases about building, engineering, and surveying, typically no less than £250k

Question 15

What is the timeline for adjudication?

Answer 15

• Either party raises a notice of adjudication
• Within 7 days of the notice, an adjudicator is chosen (either already named in the contract or an adjudicating body) and the referring party must issue the adjudicator with a referral notice
• The adjudicator must make a decision within 28 days after the referral notice, or 42 days if the referring party consents, or longer if both parties consent

Question 16

What is contained within the ‘Conflict avoidance and dispute resolution in
construction RICS guidance note’?

Answer 16

• Techniques to avoid dispute i.e. good management, clear contract documents etc
• The three pillars of dispute resolution (negotiation, mediation, arbitration)
• Details of each ADR type