Conflict Avoidance and Dispute Resolution Flashcards
How can you avoid conflict in the first instance?
Clearly state in tender / contract docs what is required of all parties
Ensure continuous effective communication between all parties
Put everything in writing - documented evidence
Follow company procedures and policies
Follow RICS standards, professional statements and guidance
If conflict occurs, how do you deal with it initially?
Raise the issue with all parties and try to resolve through communication and negotiation
A face to face meeting is usually the best way to find resolution
What could indicate the success of a final account negotiation
1) All parties come away happy
2) Costs agreed and within the client’s budget
3) The negotiation is resolved in a timely manner
In your opinion, what is the cause of most disputes?
1) Commercial Aspects
2) Unclear or conflicting spec / drawings
3) Teams under pressure (poor / rushed decisions)
4) Unclear scope of services
What can you do if a negotiation breaks down and matter cannot be resolved?
Consider an Alternative dispute resolution to resolve
What is dispute resolution?
Dispute resolution is a term that refers to several processes that can be used to resolve a conflict, dispute or claim
What does ADR stand for?
Alternative Dispute Resolution
1) refers to processes which are alternatives to the traditional binding dispute resolution procedures of Litigation and Arbitration
What are the main forms of ADR?
Negotiation
Mediation
Adjudication
What does TCC stand for?
Technology and Construction Court
1) Handles disputes about buildings, engineering and surveying
2) TCC does not normally handle cases with a value of less than £250,000
What is mediation?
Parties agree on independent, third party system to facilitate discussions between them, with goal to reach a settlement
Power to settle remains with parties, process led by a mediator
The process is NON BINDING
Can you explain what a negotiation is?
Process whereby the parties work out between them how to resolve issues that have arisen
Power to settle dispute rests with the parties
Negotiation ends when parties come to an agreement
Suitable for simple matters
Requires cooperation of both parties
What is conciliation?
1) Process similar to mediation
2) Conciliator seeks to facilitate a settlement between parties
3) Conciliator doesn’t decide on issues of law or fact but conducts a process whereby each party states its position and then attempts to work towards a compromise
4) Conciliator prepares recommendation which sets out their solution to the dispute, if neither party dissents from that recommendation or initiates adjudication or arbitration then recommendation becomes final and bonding
Whats the difference between conciliation and mediation?
Mediator acts as a facilitator who helps parties in agreeing
Conciliation allows for facilitator to play more direct role in solution for dispute. The facilitator can make suggestions towards certain proposals and give advice for certain solutions
What is an expert witness?
Person whose experience and knowledge in particular field is beyond what is expected of a layman.
An expert witness makes his knowledge available to the court or other bodies to help understand the issue before it and reach a just and reasoned decision
What is expert determination?
Process whereby parties agree to refer their disagreement to an impartial expert third party and will then be bound by his decision
1) Parties can choose who the expert is
2) More informal than arbitration and litigation
3) Ideal for technical disputes
4) Generally simpler and cheaper than arbitration or litigation - can be used as a short cut to binding decision
What are the advantages of expert determination?
Confidential procedure which is less adversarial and helps parties maintain a working relationship
Provides cost and time efficient solution for resolving disputes
Procedures controlled by the parties rather than a court or arbitration rules
An expert can be appointed who is familiar with specific technical issue
What is adjudication?
1) Developed to allow construction contract disputes to be resolved more quickly and cost effectively than resolution through arbitration and litigation
2) Objective to provide fast working solution to an issue so that parties can quickly resume or continue work under the contract
Can the decision period of 28 days be extended in adjudication process?
Time can be extended to 42 days by mutual agreement of both parties
Is the adjudication process binding?
Adjudicators decision will be binding on the parties unless the adjudicator acted outside his jurisdiction or was biased towards the one party
Is there an appeal process with adjudication?
There is no appeal process.
Parties can take the same dispute to litigation (arbitration if the contract contains an arbitration agreement)
What if the building contract does not contain provisions for adjudication?
Adjudication became a legal right in relation to construction contracts in the UK when legislation known as the construction act came into force
Who pays for the adjudication?
Both parties are jointly liable for adjudicators fees
Adjudicator can usually decide who is to pay the fees and reasonable expenses
What is arbitration?
Arbitration is essentially a lawsuit but without court involvement
Parties agree to submit their dispute to arbitration rather than pursue lawsuit in court
Parties agreement gives the arbitrator the power to issue a decision as to the parties rights and obligations and such decision will be legally binding
What are the advantages of arbitration?
Process is private - there is no public record of any proceedings
Spped - more efficient process than litigation
Parties can agree on an arbitrator with relevant expertise in the matter
Arbitrators award can be enforced as a judgement of the court
What are the disadvantages of arbitration?
1) Parties must bear the costs of both arbitrator and venue
2) Limited appeal rights
3) If the matters is complicated but amount of money involved is modest then arbitrators fee may make arbitration uneconomical
What is litigation?
Litigation involves one of the parties commencing a claim in the civil courts
The courts have inherent jurisdiction to hear a dispute
The nature, complexity and value of the dispute will determine which court will here it
What are the advantages of litigation?
1) Judges can compel the parties to comply with timeframes and have powers of sanctions for non compliance
2) Judges have the power to make orders to provide interim relief to protect a partys position pending the final judgement
3) There are defined rights of appeal in cases where errors of fact or law are made
What are the disadvantages of litigation?
1) Potentially greater costs if the dispute is not well managed
2) Potentially longer time period to obtain a judgement
3) Proceedings generally conducted in public
4) Judgement subject to appeal
