Conflict avoidance and dispute resolution

Question 1

What are the 5 steps to reduce conflict?

Answer 1

1. Good Management - Proactive, raise issues early
2. Clear contract documents - Reduce ambiguities, identify key areas of risk early
3. Good project / client management - understand client objectives from outset
4. Good Payment Notice - helps to maintain cashflow and in line with contract
5. Record Keeping - usually disputes can be resolved from this

Question 2

What is the hierarchy of dispute?

Answer 2

Negotiation 
Mediation 
Adjudication 
Determination 
Arbitration 
Litigation 

NMA DAL

Question 3

What is negotiation?

Answer 3

When both parties negotiate to try and resolve the issue, it is the problem solving efforts of the parties themselves

Question 4

What is Mediation?

Answer 4

A third party mediator is employed to try and help the negotiation process. The mediator is a expert in negotiation. The decision is not binding.

Question 5

What is consiliator?

Answer 5

A Conciliator is the same as a mediator but they are a specialist in that specific field.

Question 6

What is Adjudication?

Answer 6

It is the UK Statute dispute resolution, the final outcome is determine by a third party and it is a binding decision.

Question 7

What are the timescales for the adjudication process?

Answer 7

• 7 days to appoint an adjudicator
• 7 days for one party to give their case
• other party has 7 days to give their case
• 7 days for adjudicator to come to a conclusion
  (An extra 7 days can be given if both parties can agree)

Question 8

Can the decision made in adjudication process be disputed?

Answer 8

Yes but only on a technicality

Question 9

What is smash and grab adjudication?

Answer 9

Relates to contractor’s taking clients to adjudication over late issue of certificates following due date.

Question 10

What is determination?

Answer 10

When a third party ombudsmen or dispute review boards makes a decision which is legally binding

Question 11

What is arbitration?

Answer 11

Arbitration is a private dispute resolution process which provides a legally binding decision that cannot be disputed. It was brought about by the Arbitration act 1996 and must be stated it the contract to apply. However its not recommended as it is expensive and slow.

Question 12

What year was the Arbitration act published?

Answer 12

1996

Question 13

What are the 3 types of negotiation?

Answer 13

• Neutral fact finding
• Expert Appraisal
• Early Neutral Evaluation

Question 14

What is litigation?

Answer 14

It is a dispute resolution process held at technology and construction court. All proceedings are public domain and there are no appeals on final decisions. However it is not recommended as it is costly and normally a slow process.

Question 15

What was the outcome or lord woolf report?

Answer 15

It urges people to try alternative dispute resolution processes as courts are getting backed up by a number of claims. It is also beneficial as it can save both time and money.

Question 16

Name 2 pieces of legislation that relate to adjudication?

Answer 16

1. Housing grants, construction and regeneration act 1996 - section 108
2. The local democracy, economic development and construction act 2009

Question 17

What are the differences between Mediation and Conciliation?

Answer 17

• Conciliation is more formal
• Conciliation has more power
• Conciliation is an expert in the field, mediator is an expert in communication and negotiation
• Conciliation can propose a solution, mediator cannot

Question 18

Under JCT how long does an adjudicator have to make his award?

Answer 18

28 days from issue of the referral notice, but this can be extended to 42 days if both parties agree

Question 19

What is ADR?

Answer 19

Alternative dispute resolution was introduced as part of the civil procedure rules in 1998. This was a improvement of the legal system which makes it quicker, cheaper, clearer and easier to understand.

Question 20

What do you understand by statutory?

Answer 20

Statutory Law ( Statute law) is set down by legislate

Question 21

Talk me through how you would go about negotiating something?

Answer 21

1. Firstly I would prepare, as understanding your points fully is critical
2. Secondly I would pre-determine what i can afford to give away, know my bottom line
3. ensure I focus on the bigger picture, don’t get stuck on one item
4. Negotiate the small deals before the big ones.

Question 22

How does JCT deal with conflict avoidance and dispute resolution?

Answer 22

• adjudication if selected
• arbitration if selected
• litigation as default
• express acknowledgement of negotiation if possible

Question 23

How does NEC deal with conflict avoidance and dispute resolution?

Answer 23

• adjudication is standard (under HGCRA)
• if appealed it goes to arbitration
• NEC 4 adds 4 weeks for negotiation

Question 24

How do PPC deal with conflict avoidance and dispute resolution?

Answer 24

• conciliation or mediation or alternative dispute resolution set o in contract
• adjudication under HGCRA

Question 25

How do FIDIC Contracts deal with conflict avoidance and dispute resolution?

Answer 25

• engineer considers claim

- dispute resolution board to make decision of engineer cannot resolve

Question 26

What is smash and grab adjudication?

Answer 26

When a contractor takes the client to adjudication for late issue of certificate after due date