Conflict Avoidance Flashcards
How do you avoid conflict on a project?
- Being polite and courteous at all times, being clear in what you are communicating and completing work on time and to a high standard.
Further examples include:
- Clear contract documentation: reduces ambiguities or contradictions
- Maintain good payment practices: contractor relies on fair valuations and prompt cash flow
- Keeping good records: Conflicts may be resolved by being able to retrospectively examine records
- Conduct regular and pro-active reporting: Keeps all parties informed of the current position of the contract, highlights early warnings and presents an opportunity to discuss matters
Talk me through how you would go about negotiating something?
“1. I would prepare, as understanding you points fully is critical.
2. I would pre-determine what I can afford to give away, know my bottom line.
3. Focus on the bigger picture, don’t get stuck on one item.
4. Try to negotiate a win/win situation.
5. Never accept the first offer.
6. Finally, I would negotiate the small deals before the big ones.”
What is the Adjudication Process?
“Provides quick solution to dispute to enable parties to proceed without damage to relationship or delay.
- Either party may request the appointment of an adjudicator to be made
- This must be made within 7 days of Notice of Dispute
- Adjudicator will review parties cases, and make their decision within 28 days. (This can be extended to 42 days)
- The adjudicator does not have the power to award costs, unless the parties agree to grant him this power.”
What is Litigation?
Litigation is the process of taking legal action, i.e. in the construction industry, it will typically be taken to the Construction and Technology Court.
What is Mediation?
”- Neutral mediator who facilitates discussions between the two parties to explore whether a solution can be found
- A confidential and informal process
- Mediation is usually conducted on a ‘without prejudice’ basis
- Mediator has no decision-making authority and cannot impose a resolution upon the two parties
- RICS Guidance Note on Mediation, 2014”
What is Arbitration?
The use of an Arbitrator to settle disputes.
- It is a private, judicial determination of a dispute by an independent third party.”
What is the Arbitration Process?
”* The appointed Arbitration body must be notified, and they will appoint an Arbitrator.
* The main hearing will be held, whereby each side will present their version of the conflict, along with their evidence.
* The arbitrator will hen base their decision on what they believe to be fair and just, as they are not required to follow the law or reasoning of earlier case decisions.
* It is very difficult to appeal an Arbitration, they can only be appealed if it can be proved that the arbitrator was:
o Corrupt.
o Bias.
o Arbitrator exceeded their power.”
What legislation governs arbitration?
The Arbitration Act 1996
What is a Dispute Board?
A group that is assigned to a project from inception. They are more a preventative form of dispute resolution rather than reactive, as they will try to identify where disputes may arise, and takes steps to ensure they do not happen.
What is conciliation?
Where a conciliator meets with both parties separately to resolve their differences. Used when the relationship between parties of a contract have broken down.
Why can disputes occur?
”- Poor performance of parties.
- Uncontrolled change.
- Complex contractual relationships / inadequate tender and contract documentation.
- Inability or reluctance to pay.
- Inappropriate procurement.
- Pressure to start on site before design and or contract finalized e.g. Letters of Intent (LOI)”
What techniques / 3 pillars of dispute resolution?
”- Negotiation – problem solving efforts of the parties themselves.
- Mediation or conciliation – 3rd party intervention makes a non-binding decision.
- An adjudicative process – final outcome determined by a 3rd party who’s decision is binding.”
What is the difference between adjudication and arbitration?
“Adjudication is meant to be quicker and cheaper than arbitration or litigation, as adjudicators must reach a decision within 28 days.
Adjudication decisions can be appealed and taken to arbitration or litigation.”
What is ADR and the types?
“Methods of dispute that do not involve seeking redress from the courts
- negotiation
- mediation
- adjudication”
Can you tell me the dispute resolution procedure listed in one of your contracts and who the nominated body is?
“AIA Contract; contains ADR for:
- Dispute Board
- Mediation
- Arbitration
- Litigation”
What are the advantages of Alternative Dispute Resolution (ADR)?
”- Speed – takes less time than lengthy court proceedings following the Civil Procedure Rules
- Informality – outside a court
- Greater opportunity for negotiation
- Cost – less money spent on professional fees for litigation
- Quality of decision making – as outcome or award can be made by a surveyor rather than a judge
- Confidentiality”
What is independent expert determination?
”- Independent expert is appointed by the two parties (or by President of the RICS undertaken by the RICS Dispute Resolution Service)
- Expert has knowledge on the subject matter of the dispute
- Both parties are bound by the decision
- Independent expert is appointed to investigate the dispute and receive evidence from both parties
- They can use their own opinion or evidence to decide upon the award
- Process offers speed and specialist knowledge in the solution
- RICS Guidance Note on Independent Expert Determination, 2016”
What is an expert witness?
”- When a surveyor provides evidence to a judicial or quasi-judicial body
- The expert must provide a Statement of Truth and confirmation that they will act impartially and objectively to the body
- Should give an objective and unbiased opinion to matters relating to their experience - they cannot ‘cherry pick’ the details to fit the case
- RICS Professional Statement for Surveyors acting as expert witnesses, 2014”
What is ‘hot tubbing’?
Where expert witnesses are sworn in to cases alongside each other and are give the chance to ask each other questions
What is the role of an advocate?
”- A surveyor acting for a client as an advocate, represents their client at a judicial hearing/tribunal
- They have a duty solely to the instructing client
- They must act in a way to maintain the integrity of the judicial process
- They must be competent to act in this advocacy role
- RICS Practice Statement and Guidance Note for Surveyors acting as advocates, 2017”
