Conflict Avoidance Flashcards by Daniel Baines

What is ADR?

Alternative Dispute Resolution

Quick and cheap

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Types of ADR?

Mediation
Conciliation
Adjudication
Arbitration
Independent expert determination

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Formal methods of ADR

Arbitration
Litigation
Adjudication

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Considerations under ADR

Cost
Time
Impact

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What is conciliation?

Requires a third party
Has no authority
Not binding
Role as a messenger between parties
Conciliator express their opinion
Negotiation breaks down - conciliator prepare recommendation how dispute should be resolved
Neither object in 1 months = final decision

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What is mediation?

Requires a third party to facilitate negotiations
Attempts to bring both sides together

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What is negotiation?

Two + parties reach agreement

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What is adjudication?

Statutory form of ADR
Simple and not lengthy
Requires a third party
Adjudicator decides outcome
Appeal through litigation/arbitration
28-48 day timeframe
Must be a term in contract
Parties select expert

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What is Housing Grants, Construction and Regeneration Act 1996?

Aims to ensure payment on construction projects is prompt and disputes resolved quickly

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What if a building contractor does not contain ADR?

Statutory right under Construction Act

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What is Arbitration?

Governed by Arbitration Act 1996
Control of both parties to submit evidence
Conditions must be met i.e dispute, difference
Binding agreement to submit to arbitration in contract
Kept private
Docs only (28 days), short hearing (30 days), full procedure (long)

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What is Arbitration Act 1996

Both parties agree to it
Both have discretion to conduct
Provide formal submission i.e evidence, hearing
Kept private

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What is Litigation?

Legal action through Courts - CPR
Public follows civil procedure
High cost
Used for multi party dispute

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Methods of ADR

Negotiate
Litigation
Valuation Tribunals
ADR
PACT = Professional Arbitration on Court Terms
Mediation
Conciliation
Calderbank (rent review)
Adjudication
Expert witness

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What is independent expert?

Expert with knowledge of the area appointed by both
Confidential
Not binding
Flexible
Quick
Decision based on written evidence and personal inquiries

BUT

No legislation governing role
Contractual (binding)
Adversarial (damage reputation)
Limited cost power

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What is PACT?

Professional Arbitration on Court Terms
Lease renewals only
Non-rent (service charge, break) and rent
Both parties agree to use
Pre issue and post issue

What is mediation?

Neutral third party - works with all parties
Mediator encourages positive dialogue
Facilitative mediator - encourages dialogue, draws attention to common aims, helps both understand each others position, finds options to resolve. Facilitates discussions
Evaluative mediator - expert is matter and does that of facilitative mediator.
Encouraged by courts
Not to advise
Not binding
Instrumental if goes to court
Minimise disagreement

What is CPR?

Civil Procedure Rules

Courts encourage ADR before proceeding to litigation

What is a Calderbank offer?

Private and confidential offer
Intend to settle dispute
Must be genuine offer, capable of being accepted
If not accepted, cannot be revealed to independent dispute resolver until their decision is made and they are deciding how the costs are allocated
Award less than Calderbank offer, party refused to accept can be liable for most/all costs

Calderbank v Calderbank 1976

What are the causes of disputes?

Rent
Service charge
Dilapidations

How to avoid conflict?

Regular reporting
Independent reviews
Open and transparent communication

What is an expert witness?

Appointed to provide testimony in court
High knowledge and expertise in subject area
Duty to the judge

What is an expert witness?

Appointed to provide testimony in court
High knowledge and expertise in subject area
Duty to the judge
Complex issues: party wall, insurance, injury claims

What is RICS role in dispute resolution?

RICS Dispute Resolution Service (DRS)
Oldest and largest provider of ADR
Rent reviews, construction adjudication, dilapidations, service charge
28 day timeframe - construction

How can risk management help avoid disputes?

Identify risks Allocate risk to best party Manage risk

What is an early warning system?

Data on project risk - delay, quality issues Help PM stay ahead of issues causing delays or cost overruns

Where would you find the mandatory RICS requirements for identifying conflicts of interest?

Professional standards called conflicts of interest global eff jan 2018

Explain RICS Conflict Avoidance Process (CAP)

Helps parties avoid prolonged damaging disputes Contracting parties to identify and dispose of emerging dispute early Avoid escalation and damage to brand reputation

ADR vs litigation

ADR - quicker, less formal, cheaper, done in private

How to avoid disputes?

Clear contract documents and ToE Effective communication Record keeping Written correspondence Company procedure RICS guidance and statements

Causes of disputes

Errors and conflicting information Poorly defined control procedures Lacks of knowledge/understanding of obligations Errors in contact Delays to payment Non conformity of contractual obligations Poor workmanship

Factors to consider when selecting dispute resolution

Cost in proportion to claim Timescales Impact on relations and reputation

What is the difference between mediation and conciliation?

Mediator is neutral parties to help rebuild relationship and work out solutions mutually. Parties directly engages Conciliation has same aims but different process. Usually figure of authority but parties turned to for guidance. Provides suggestions for parties to make final decision

What is the difference between arbitration and litigation?

Arbitration- governed by Arbitration Act 1996, agreement between both parties, discretion as to proceedings conduct, formal submission by parties, expert evidence, hearing and decision by arbitrator, advantages (private, flexible, easier to enforce) Litigation - presentation in court, process following Civil Procedure Rules, advantages (parties do not pay for court or judge, can deal with multi parties, aim for accessibility, speed and efficiency)

Name key features of dispute avoidance?

Early engagement - agreement early in the process Reduced risk - identify potential problems Flexibility Cooperation

What does PACT mean?

Professional Arbitration of Court Terms For lease renewal disputes

What are the RICS DRS areas under your sector?

Adjudication services Commercial rent review appointment service Commercial rent arrears arbitration service Dilapidations disputes PACT Service charge: dispute resolution Small business scheme for rent reviews