Conflict Avoidance Flashcards
What are the key themes of the conflict avoided and dispute resolution in construction
Discusses the different types of alternative dispute resolutions in construction.
- What is ADR
Alternative dispute resolution- alternative to going to court which could be costly
- What are the different types of ADR
Negotiation Mediation Arbitration Independent Expert witness Adjudication
- Who is the planning inspectorate
is an executive agency of the Ministry of Housing, Communities and Local Government of the United Kingdom Government with responsibility to make decisions
- What is arbitration
is the most formal of the three alternative procedures. It works very much like litigation (it is normal for parties to be legally represented). It is not necessarily quicker or cheaper than litigation and involves much of the same procedure (the production of statements of case, written witness evidence etc.). The main differences are that it is conducted in private, that the parties are free to agree procedural rules between themselves, and that the tribunal consists of arbitrators chosen (and employed) by the parties themselves. Arbitration has a statutory basis under the Arbitration Act 1996, which makes the decisions of tribunals (known as ‘awards’) enforceable in the courts.
They are subject to very limited rights of appeal (generally only if the tribunal has made a mistake as to the law or there has been a serious procedural irregularity). Arbitration is often provided for in contracts as a binding alternative to litigation. It is otherwise available only if the parties agree.
The arbitrator can award costs which are recoverable, reasonable and proportionate
- What is Adjudication
is a more formal mechanism for dispute resolution that is designed to be quicker and a cheaper than arbitration or litigation. A third party adjudicator, usually a technical expert in the relevant field, decides the (generally factual) issues between the parties. Adjudication has a statutory basis under s.108 of the Housing Grants, Construction and Regeneration Act 1996. The adjudicator’s decision is binding upon the parties and may be the subject of appeal or enforcement in the courts.
Section 108A of the Construction Act 1996 provides that the costs of an adjudication can only be awarded where such a provision had been made in writing.
- Difference between arbitration and adjudication
Arbitration
- Governed by Arbitration Act 1996
- May be used as an appeal process
- Similar to court proceedings
- If parties do not agree that decision is subject to appeal then the decision is binding
- Operates outside of the normal court process by which a third party reaches a decision that is binding on both parties.
- Less formal and happen in private and decisions are binding on the parties. The winning party can apply to the high court for permission to enforce the arbitration award as if it were a court judgment (Arbitration act 1996 s66)
Uses law to come to decision
Adjudication:
- Generally used in the first instance.
- Faster- Can take 28 days and the decision is binding to the parties.
- More expensive due to how long it could take to settle matters
- Can be overturned by Arbitration or litigation
- Temporarily binding
- What are the benefits of ADR
Speed Informality Greater Opportunity for negotiation Cost- lest money spent on litigation Quality of decision making, as made by surveyor rather than judge. Confidentiality
- What is an Expert Witness
Expert Witness appointed by two parties
Both parties are bound by decision.
Overriding duty as an expert witness is to the tribunal or court to which the expert evidence is given. This duty overrides any contractual duty to your client
Can you describe the procedure for adjudication?
35 days in total 7 + 28
- Notice of adjudication
- adjudicator appointed within 7 days
- Referral notice must be issued within 7 days of the notice of adjudication
- Decision to be made within 28 days of the date of the referral notice.
- Decision binding, can be challenged in high courts of arbitration.
What was driving the desire to bring forward profit on the scheme for your client?
Client had a 5 year profit improvement plan and this project fitted its criteria.
How did you go about quantifying the likely impact of the community centre on the sales values/saleability of the private units?
This was not quantified but was discussed with the Sales Director on the impact it will have on the sales rate.
You recommended option C and provider 2 on the basis that they offered the highest bid. What other considerations might have been considered in choosing the preferred bidder?
Relationships with existing Reg provider, local requirements i.e. stakeholder residents, financial standing of bidder, payment terms.
The payment structure proposed was 10%, 30%, 60%. With 30% at golden brick. What is the significance of Golden Brick?
Golden Brick Zero Rates the the VAT for the registered provider by giving them an interest in the land.
You concluded that other options were available in terms of international investor or private rented sector company. How would you have assessed the risk profile for your client in these options.?
Gone out to tender and assess their bids on an individual basis. Carry out due diligence on accounts via companies house.
