Conflict Avoidance

Question 1

What is the best way to avoid conflict?

Answer 1

1. Good Management
2. Clear Contract Documentation
3. Partnering and Alliancing
4. Good Project Management
5. Good Client Management
6. Good Design Team Management
7. Good Payment Practice
8. Record Keeping
9. Regular Reporting

Question 2

How do you get unambiguous contracts?

Answer 2

Ensure provisions within the contract do not conflict or have more than one meaning. The best way to avoid this would to be to use unamended standard forms.

Question 3

If you noted that there were ambiguities what would you do?

Answer 3

I would raise this with the Pre-Contracts Director in my company who would deal with it appropriately.

Question 4

How does record keeping avoid conflict?

Answer 4

Good record keeping on site, for example; daily site diary, change control, procurement records and monthly progress reports can all aid in resolving a dispute quickly if one arises.

Question 5

How do engender cooperation?

Answer 5

1. Separating people from the problem
2. Focusing on interests rather than positions
3. Generating a variety of options before settling on an agreement
4. Insisting that the agreement be based on objective criteria

Question 6

What do you understand by the term ADR?

Answer 6

ADR means Alternative Dispute Resolution and encourages parties to settle disputes outside of court.
It is cheaper, quicker and keeps courts free.

Question 7

What are the different ADR processes?

Answer 7

adjudication
mediation
arbitration and
expert determination.

Question 8

What are the principal differences between them?

Answer 8

Meditation - no legally biding decision
Adjudication - temporarily binding, quick, cheaper than arbitration
Arbitration - legally binding
Expert Determination - resolved by 1 individual who is selected before a dispute and is legally binding

Question 9

Which ones are binding?

Answer 9

Adjudication - binding if accepted
Arbitration
Dispute Resolution Boards
Independent Expert Determination

Question 10

Can you give me some examples of good practice associated with conflict avoidance?

Answer 10

1. Communication between parties
2. Ensure contract is correct and contains no ambiguous terms
3. Put everything in writing
4. Follow company procedures
5. Follow RICS guidance

Question 11

What dispute resolution techniques are available in construction?

Answer 11

1. Negotiation
2. Mediation of Conciliation
3. Expert Determination
4. Adjudication
5. Arbitration
6. Litigation
7. Dispute Boards

Question 12

What court in the UK deals with construction related litigation?

Answer 12

The TCC - Technology and Construction Court
Cases usually in value of 250k plus

Question 13

What is Negotiation?

Answer 13

Negotiation is problem solving between parties.

Question 14

What is Mediation/Conciliation?

Answer 14

Mediation and Conciliation introduces a 3rd party to help aid discussions and reach an agreement.

Question 15

What is Adjudication?

Answer 15

Adjudication - outcome is decided by a 3rd party who imposes a temporary binding decision on the parties.

Question 16

What are dispute resolution boards?

Answer 16

A board of individuals who are appointed before dispute arises, they become familiar with the project and can issue binding decisions on the parties.

Question 17

What are dispute resolution advisors?

Answer 17

Advisors work the same way as dispute resolution boards, however, they issue recommendations to the parties.

Question 18

What is Independent Expert Determination?

Answer 18

Parties agree a 3rd party will make a decision for them. Decisions are final and it not possible to appeal.

Question 19

What is arbitration?

Answer 19

1. Arbitration Act 1996
2. A lawsuit with no court involvement
3. Arbitrator makes a legally binding decision but it is private
4. Limited appeal rights

Question 20

What is litigation?

Answer 20

1. Expensive
2. Court is involved
3. Can summon witnesses
4. Can involve 3rd parties
5. Legally binding
6. In public domain

Question 21

What is the difference between arbitration and adjudication?

Answer 21

1. Arbitration is legally binding
2. Adjudication is quicker and cheaper
3. Arbitration can use expert witnesses
4. Adjudication (both parties are liable for fees)
5. Arbitration losing party pays the fees

Question 22

What legal framework does adjudication / arbitration operate within?

Answer 22

1. Adjudication - HGCRA 1996
2. Arbitration Act 1996

Question 23

What is the difference between Mediation and Conciliation

Answer 23

1. Mediator encourages an agreement
2. Conciliation prepares a ‘recommendation’ which sets out a solution to the dispute

Question 24

What is an expert witness?

Answer 24

An expert witness is a individual who has knowledge in a particular field which could help a court understand the issue before a decision is reached.

Question 25

Please can you describe the time frame for adjudication?

Answer 25

1. Either party can issue an intention to refer dispute to an adjudicator
2. The party referring a dispute must provide its case to the other party within 7 days
3. Within 7 days the referring party must appoint an adjudicator
4. Adjudicator must make a decision in 28 days

Question 26

Can the 28 days be extended?

Answer 26

Yes, to 42 is agreed by both parties.

Question 27

What is pre-action protocol?

Answer 27

They explain the conduct and set out the steps the court would normally expect parties to take before commencing proceedings

Question 28

What is a Scott schedule?

Answer 28

A table, often in landscape format, in which the Claimant’s case on liability and quantum is set out item by item in the first few columns and the Defendant’s response is set out in the adjacent columns’