Conflict Avoidance Flashcards
How do you avoid conflict in the first instance?
Clearly state requirements in documents.
Ensure continuous communication.
Put everything in writing.
Follow RICS standards, professional statements and guidance.
If conflict occurs, how do you deal with it initially?
Raise with all parties to solve through comms and negotiation.
Face-to-face meeting usually best.
What indicated success of final account negotiations?
All parties come away happy.
Costs agreed and within the client’s budget.
Negotiation resolved in a timely manner.
What is the cause of most disputes?
Unclear drawings.
Rushing decision making.
Contracts not drafted properly.
Unclear scope of service.
What do you do if negotiations don’t work?
ADR.
Main forms of ADR?
Negotiation.
Mediation.
Conciliation.
Adjudication.
What is TCC?
Technology and Construction Court.
Handles disputes about buildings, not under £250k.
What is mediation?
Third party facilitates discussions with goal of reaching settlement. Power remains with the parties. Non-binding.
What is conciliation?
Third party conciliator, does not decide issues but works to a compromise after each party states their position. They make a recommendation.
Difference between mediation and conciliation?
Mediator acts as a facilitator, conciliator acts more directly to find solutions.
What is an expert witness?
A person whose experience and knowledge is beyond what is expected.
What is expert determination?
Process whereby parties agree to refer their disagreement to an impartial expert third party.
More informal than arbitration or litigation.
Advantages of expert determination?
- Less adversarial.
- Cost and time efficient.
- Controlled by parties, rather than court.
What is adjudication?
Provides fast working solution to an issue, to resume work under the contract. It is binding.
Adjudication process timeline?
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.
Can decision period be extended?
Can be extended to 42 days by both parties mutually agreeing.
Is there an appeal with adjudication?
No, but can go to litigation or arbitration.
What if a contract doesn’t contain provisions for adjudication?
Became a legal right under the HGCRA 1996.
Who pays for adjudication?
Both parties liable.
Adjudicator can usually decide.
What is arbitration?
Arbitrator issues a decision and is legally binding.
Advantages of arbitration?
Private process, no public record.
Speed against litigation.
Parties agree on an arbitrator.
Disadvantages of arbitration?
Parties bear the costs of arbitrator and venue.
Limited appeal rights.
What is litigation?
Involves one of the parties bringing a claim to the civil courts.
Advantages of litigation?
Compel parties to comply with time frames.
Judges can make orders providing interim relief, pending decision.
Defined rights of appeal.
Disadvantages of litigation?
Greater costs of not well managed.
Could take longer.
Public process.
What do words in italics mean in a contract?
Contract Data
What do capitalised words mean in contracts?
Defined Term
What is the RICS CAP?
Conflict Avoidance Process:
1 - Panel appointed of 1 or 3 professionals to resolve issues.
2 - CAP panel are experts in the subject of the dispute.
3 - Work alongside parties to understand the issue.
4 - CAP panel provides a fully reasoned CAP report with practical means to resolve the issue.
What are the benefits of CAP?
Quicker and cheaper than litigation.
Nip issues in the bud before escalation.
Maintain good working relations between parties.
Recommendations not imposed.
Parties retain control.
Pay-as-you-go, only pay when you use it.
What does the RICS do in terms of Dispute resolution?
Dispute Resolution Service (DRS).
Provides impartial ADR without litigation.
Includes CAP, adjudication, arbitration, mediation. Panel of dispute resolvers.
