Conflict Avoidance Flashcards
What are 3 alternative dispute resolution techniques? (ADR)
Negotiation - the problem solving efforts of the parties themselves.
Adjudication - an adjudicator decides on the basis of the case, imposing a binding decision on the parties. 28 days for adjudicator to reach decision, can be extended to 42 with mutual agreement.
Mediation - third party invention in finding a solution, typically non binding.
How does JCT deal with dispute resolution in its contracts?
Mediation (strongly recommended).
Adjudication (parties have a right, contract says how to notify).
Arbitration (contract says how to notify).
What is dispute resolution?
Actions that can be used to resolve a conflict, dispute or claim between parties.
What is conflict avoidance?
Actions to prevent a conflict occuring, i.e.
Ensure continuous communication between all parties.
Put everything in writing to ensure there is always documented evidence.
Follow company procedures and policy.
Follow RICS standards, professional statements and guidance.
What are different forms of dispute resolution?
Arbitration
Litigation
Traditional binding procedures.
What is adjudication?
Introduced to allow for construction contract disputes to be resolved quicker, and in a more cost effective way than arbitration and litigation.
Aim is to find a fast working solution to an issue so that parties can quickly resume or continue works under the contract.
How does adjudication work?
Party to serve a notice of its intention of adjudication.
Within 7 days the referring party must advise of their statement of case. If not served the adjudication will likely be void.
The referral must contain a detailed explanation and any supporting information.
Within the 7 day period the referring party must secure an appointment with an adjudicator.
Following appointment the adjudicator will set out a timetable. This will permit the other party to submit a response to the referral.
The adjudicator must make a decision within 28 days.
Is the adjudication binding?
Yes, unless the adjudicator has acted outside their jurisdiction.
Is there an appeal process with adjudication?
No appeal, but you can refer same dispute to litigation.
What if the building contract does not contain provision for adjudication?
Adjudication became a legal right in relation to construction contracts in the UK when the Construction Act came into force.
Who pays for the adjudicator?
The adjudicator usually decides who is to pay the fess and reasonable expenses.
What is the conflict avoidance panel?
A system created by the RICS to raise potential conflicts before they become conflicts.
What would your considerations be prior to selecting a form of dispute resolution?
The cost of dispute resolution in proportion to the claim being sought.
The timescales involved.
The impact on business relationships and reputation.
What is conciliation?
This dispute resolution process is similar to mediation and relies on an independent third party to facilitate reaching an agreement/settlement.
Conciliator prepares a recommendation which sets out their solution to the dispute, if neither party dissents from that recommendation or initiates adjudication or arbitration, then the recommendation becomes final and binding.
What is mediation?
The parties agree on an independent, third party to facilitate discussions between them with the goal of reaching a settlement. The power to settle remains with the parties, but the process is led by the mediator.
Mediation encourages a coming together of 2 parties by mutual agreement.
The process can be initiated at any time.
The mediator does not award a winning party.
The process is non binding.
What is negotation?
Negotiation is where the parties reach an agreement through an informal discussion.
Both parties will agree to settle the dispute either at a high level or in detail and agree to be bound by this settlement.
Suitable for simple matters and it requires cooperation from both parties.
What is the TCC?
Technology and Construction Court
Handles disputes about buildings, engineering and surveying.
Does not typically handle cases with a value less than £250k.
What is the FIDIC contract’s preferred method of dispute resolution?
Dispute resolution boards.
What is the difference between mediation and conciliation?
In mediation, the mediator acts as a facilitator who helps the parties in agreeing.
Conciliation allows the facilitator to play a more direct role in the solution for the dispute. They can make suggestions and give advice.
What is expert determination?
Process whereby the parties agree to refer their disagreement to an impartial third party and they will then be bound by their decision.
Can choose who the third party is.
More informal and cheaper than litigation and arbitration and can be used to short cut a binding decision.
What is arbitration?
Essentially a lawsuit but without court involvement.
The parties agree to submit their dispute to an arbitrator who issues a decision which is legally binding on all parties.
