Conflict Avoidance

Question 1

What is Alternative Dispute Resolution?

Answer 1

Methods of resolving disputes without seeking redress through the courts. Aims to avoid lengthy and expensive situations like litigation.

Question 2

Can you name some types of ADR?

Answer 2

Conciliation
Mediation
Negotiation

Question 3

What are the different types of dispute resolution?

Answer 3

Mediation
Adjudication
Arbitration
litigation

Question 4

What is negotiation?

Answer 4

Parties work out how to resolve any issues between themselves, power to settle disputes rests with the parties involved

Question 5

What is Mediation?

Answer 5

Negotiation with assistance of a third party. Less costs, decision not binding and very informal and private

Question 6

What is Conciliation?

Answer 6

Power to settle remains with the parties,
3rd party neutral there to facilitate discussions, conciliator has no authority to seek evidence or call witness, more a messenger,
shuttle diplomacy

Question 7

What is the difference between mediation and conciliation?

Answer 7

Mediator facilitates

Conciliator evaluates

Question 8

What law guarantees the right to adjudication?

Answer 8

The Local Democracy, Economic Development and Construction Act 2009

Question 9

Which high court enforces construction related litigation?

Answer 9

Technology and Construction Court (TCC)

Question 10

What is Adjudication?

Answer 10

Submission of disputes by consensual agreement to a third party for an interim decision which is binding unless a court states otherwise.
28 days to decide, less expensive than arbitration due to speed through courts
Because of the time frames it can be pre-prepared and sprung unfairly - negative

Question 11

What is Arbitration?

Answer 11

Submission of disputes by consensual agreement to a third party for a binding decision.
Can take months or years due to lengthy hearings, makes it the most expensive,
private so long as no court intervention
Contract must have a written clause to arbitrate

Question 12

What is Litigation?

Answer 12

Process of making a civil claim in a court of law (TCC). Longest time frame, expensive and very public,
one party can start it and the others presence is not voluntary.

Question 13

What is the default form of conflict resolution in JCT contracts?

Answer 13

Adjudication

Question 14

What section of the JCT contract refers to adjudication?

Answer 14

Article 7 in the Contract Particulars

Section 9.2

Question 15

What are the adjudication time frames?

Answer 15

Notice of adjudication given
Adjudicator appointed within 7 day of serving Notice of Dispute
Within 7 days of notice referring party must issue referral and information
Adjudicator has 28 days to make a decision from the date of Referral
Can be extended by 14 days by referring party if required

Question 16

In what order should conflict resolution be carried out during a JCT contract?

Answer 16

Mediation, Adjudication then Arbitration

Question 17

How does the JCT Standard Forms state how to deal with conflict avoidance and dispute resolution?

Answer 17

Section 9 – Settlement of disputes; Refers to 3 types
Mediation
Adjudication
Arbitration

Question 18

How do you avoid conflict?

Answer 18

Good management – proactive not reactive
Clear contract documents – no ambiguities
Partnering
Good record keeping

Question 19

What did the construction act change

Answer 19

Right to adjudication

Question 20

When can arbitration be appealed?

Answer 20

Only on a point of law / if there is an incorrect interpretation

Question 21

When does adjudication not apply?

Answer 21

In the case of a residential occupier unless they enter a contract explicitly including adjudication

Question 22

If a conflict of interest arises what must you do?

Answer 22

Declare it to the client and ensure they are okay with it

Get them to sign an “Informed Consent” – RICS provide a template

Question 23

Soho Place is for a publically listed company, how may this effect their dispute resolution options?

Answer 23

Adjudication is guaranteed by law (HGCRA)
However arbitration may mislead the shareholders, further conflict must be solved publically
Litigation must be used instead of Arbitration