Conflict Avoidance

Question 1

How do you avoid conflict in the first instance?

Answer 1

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

Question 2

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

Answer 2

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

Question 3

What indicated success of final account negotiations?

Answer 3

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

Question 4

What is the cause of most disputes?

Answer 4

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

Question 5

What do you do if negotiations don’t work?

Answer 5

ADR.

Question 6

Main forms of ADR?

Answer 6

Negotiation.
Mediation.
Conciliation.
Adjudication.

Question 7

What is TCC?

Answer 7

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

Question 8

What is mediation?

Answer 8

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

Question 9

What is conciliation?

Answer 9

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

Question 10

Difference between mediation and conciliation?

Answer 10

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

Question 11

What is an expert witness?

Answer 11

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

Question 12

What is expert determination?

Answer 12

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

Question 13

Advantages of expert determination?

Answer 13

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

Question 14

What is adjudication?

Answer 14

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

Question 15

Adjudication process timeline?

Answer 15

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.

Question 16

Can decision period be extended?

Answer 16

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

Question 17

Is there an appeal with adjudication?

Answer 17

No, but can go to litigation or arbitration.

Question 18

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

Answer 18

Became a legal right under the HGCRA 1996.

Question 19

Who pays for adjudication?

Answer 19

Both parties liable.
Adjudicator can usually decide.

Question 20

What is arbitration?

Answer 20

Arbitrator issues a decision and is legally binding.

Question 21

Advantages of arbitration?

Answer 21

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

Question 22

Disadvantages of arbitration?

Answer 22

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

Question 23

What is litigation?

Answer 23

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

Question 24

Advantages of litigation?

Answer 24

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

Question 25

Disadvantages of litigation?

Answer 25

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

Question 26

What do words in italics mean in a contract?

Answer 26

Contract Data

Question 27

What do capitalised words mean in contracts?

Answer 27

Defined Term

Question 28

What is the RICS CAP?

Answer 28

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.

Question 29

What are the benefits of CAP?

Answer 29

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.

Question 30

What does the RICS do in terms of Dispute resolution?

Answer 30

Dispute Resolution Service (DRS).
Provides impartial ADR without litigation.
Includes CAP, adjudication, arbitration, mediation. Panel of dispute resolvers.