Conflict Avoidance and Dispute Resolution

Question 1

What are the alternative dispute resolution?

Answer 1

MAACE - Mediation, adjudication, conciliation, expert determination, arbitration.

Question 2

What are the advantages and disadvantages of Mediation?

Answer 2

Less adversarial, low cost, keep business relationships. However, does not always lead to a resolution which is binding.

Question 3

What are the advantages and disadvantages of Conciliation?

Answer 3

Same as mediation however, dispute left between parties to resolve mutually between parties.

Question 4

What are the advantages and disadvantages of Adjudication?

Answer 4

Statutory right, short hearing, binding decision (unless taken to Arbitration or Litigation). Short hearing which does not always give the adjudicator time to process the amount of information.

Question 5

What are the advantages and disadvantages of Arbitration?

Answer 5

Use of an independent expert in the field, private procedure to reach a binding decision. There are shorter hearings available. Can be expensive in terms of Legal Fees but it is a Private hearing.

Question 6

What are the advantages and disadvantages of Expert Determination?

Answer 6

Parties to appoint a neutral expert to determine issues in dispute. Both parties must agree to the appointment.

Question 7

What are the advantages and disadvantages of Litigation?

Answer 7

Public procedure in the courts to settle a dispute. Expensive and long. Very adversarial and public.

Question 8

What are the advantages and disadvantages of Early Neutral Evaluation?

Answer 8

Encourage settlement discussions, and it is a potential way to resolve business disputes without going to court. Use of an independent evaluator to pick positives and negatives from both parties case. Reviews the cases of both parties and encourages a settlement.

Question 9

What are the advantages and disadvantages of an Expert Witness?

Answer 9

Independent in the field. Makes decision through Section 35 of Civil Procedure Rules.

Question 10

How can a contractor refer a dispute to adjudication?

Answer 10

The automatic right to refer disputes to adjudication was introduced in 1996 when the Construction Act was introduced. A contractor can only refer one dispute to adjudication. The party serves a notice of adjudication with a referral notice that details the claim. Within 7 days both parties agree to an adjudicator and settle the T&C’s with them. Over the course of the next 7 days, the party responds in defence to the referral notice. By day 28, the adjudicator reaches a binding decision.

Question 11

Can you challenge the enforcement of an adjudicators decision?

Answer 11

Yes, but only until the dispute is litigated or arbitrated.

Question 12

Which rules govern the adjudication process?

Answer 12

Civil procedure rules.

Question 13

What are typical disputes that are referred to adjudication?

Answer 13

Non payment of monies, delays to construction, requests for extensions of time, poorly executed and defective work, clarification of the scope of a project.

Question 14

How can you avoid disputes?

Answer 14

Clarify the scope of works. Agree clear payment terms. Record and keep good records, including minutes. Complete a contract. Review competence of all workers and consultants. Using a standard form of contract.

Question 15

When may adjudication not be appropriate?

Answer 15

For more complex disputes. 28 days is a short time frame for reviewing all documentation.

Question 16

What do the RICS publish in terms of ADR?

Answer 16

Alternative Dispute Resolution Mechanisms – Information Paper.

Question 17

What schemes to the RICS promote in terms of ADR?

Answer 17

The RICS have a 40 year old Dispute Resolution Service (DRS) where they offer alternative dispute resolution to the industry to avoid construction costs whilst also taking pressure off the courts. This includes mediation, arbitration and adjudication, expert determination, early neutral evaluation.

Question 18

How has the Construction Act impacted disputes?

Answer 18

The Construction Act has enforced adjudication as a statutory right for either party of the contract.

Question 19

Is adjudication binding?

Answer 19

Yes, until referred to arbitration and/or litigation.

Question 20

What do the RICS provide for dispute resolution?

Answer 20

RICS produce Guidance notes on Conflict Avoidance and Dispute Resolutions in Construction and Mediation. They also provide Practice Notes on Surveyors acting as Arbitrators and Surveyors acting as Adjudicators.

Question 21

If a Client requests you to reduce your fee to win the bid, how would you react?

Answer 21

It is unethical to accept this. I would politely decline as it may impact on the ability to provide a high level of service. I would offer to reduce the scope of works.

Question 22

Name some dispute resolution procedures.

Answer 22

Mediation, negotiation, adjudication & arbitration

Question 23

What is the construction act? Do you know what date it came into play?

Answer 23

The Housing Grant, Construction and Regeneration Act 1996.