Conflict Avoidance Flashcards

1
Q

How do you avoid conflict in the first instance?

A

Clearly state requirements in documents.
Ensure continuous communication.
Put everything in writing.
Follow RICS standards, professional statements and guidance.

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2
Q

If conflict occurs, how do you deal with it initially?

A

Raise with all parties to solve through comms and negotiation.
Face-to-face meeting usually best.

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3
Q

What indicated success of final account negotiations?

A

All parties come away happy.
Costs agreed and within the client’s budget.
Negotiation resolved in a timely manner.

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4
Q

What is the cause of most disputes?

A

Unclear drawings.
Rushing decision making.
Contracts not drafted properly.
Unclear scope of service.

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5
Q

What do you do if negotiations don’t work?

A

ADR.

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6
Q

Main forms of ADR?

A

Negotiation.
Mediation.
Conciliation.
Adjudication.

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7
Q

What is TCC?

A

Technology and Construction Court.
Handles disputes about buildings, not under £250k.

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8
Q

What is mediation?

A

Third party facilitates discussions with goal of reaching settlement. Power remains with the parties. Non-binding.

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9
Q

What is conciliation?

A

Third party conciliator, does not decide issues but works to a compromise after each party states their position. They make a recommendation.

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10
Q

Difference between mediation and conciliation?

A

Mediator acts as a facilitator, conciliator acts more directly to find solutions.

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11
Q

What is an expert witness?

A

A person whose experience and knowledge is beyond what is expected.

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12
Q

What is expert determination?

A

Process whereby parties agree to refer their disagreement to an impartial expert third party.
More informal than arbitration or litigation.

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13
Q

Advantages of expert determination?

A
  • Less adversarial.
  • Cost and time efficient.
  • Controlled by parties, rather than court.
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14
Q

What is adjudication?

A

Provides fast working solution to an issue, to resume work under the contract. It is binding.

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15
Q

Adjudication process timeline?

A

Serve notice on other party.
Within 7 days, referring party must serve Referral.
Referring party must secure appointment of adjudicator. (contract named or nominating body)
Adjudicator must make decision within 28 days of Referral.

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16
Q

Can decision period be extended?

A

Can be extended to 42 days by both parties mutually agreeing.

17
Q

Is there an appeal with adjudication?

A

No, but can go to litigation or arbitration.

18
Q

What if a contract doesn’t contain provisions for adjudication?

A

Became a legal right under the HGCRA 1996.

19
Q

Who pays for adjudication?

A

Both parties liable.
Adjudicator can usually decide.

20
Q

What is arbitration?

A

Arbitrator issues a decision and is legally binding.

21
Q

Advantages of arbitration?

A

Private process, no public record.
Speed against litigation.
Parties agree on an arbitrator.

22
Q

Disadvantages of arbitration?

A

Parties bear the costs of arbitrator and venue.
Limited appeal rights.

23
Q

What is litigation?

A

Involves one of the parties bringing a claim to the civil courts.

24
Q

Advantages of litigation?

A

Compel parties to comply with time frames.
Judges can make orders providing interim relief, pending decision.
Defined rights of appeal.

25
Q

Disadvantages of litigation?

A

Greater costs of not well managed.
Could take longer.
Public process.

26
Q

What do words in italics mean in a contract?

A

Contract Data

27
Q

What do capitalised words mean in contracts?

A

Defined Term