Conflict Avoidance And Dispute Resolution Level 1

Question 1

What is a dispute?

Answer 1

A disagreement between two parties

Question 2

What is a common cause of a dispute

Answer 2

• poorly managed projects
• payment
• time disputes, overrun projects or req for more time
• unclear contract documentation
• bad team management

Question 3

What can you use to avoid disputes?

Answer 3

• Risk management - managing risks through RA’s and risk registers
• early warning systems - picking up project issues that need attention so they can be addressed
• partnering techniques - procedure for problem solving and conflict avoidance or resolution
• clear and robust client briefings

Question 4

What is mediation and conciliation?

Answer 4

The parties agree on an independent, third party neutral system to facilitate discussions between them, led by a mediator.
Advantages - cheap, allows for greater control, can preserve relationships
Cons - not binding

Question 5

What is the difference between mediation and conciliation?

Answer 5

Mediation, the parties are encouraged to find a solution, with the facilitior only acting as a guide. Conciliation the facilitator has the responsibility to identify the objectives of the parties and actively help find a solution.

Question 6

The code of civil procedure 1908 CPC

Answer 6

Adjective law. It neither creates or takes away any right. It is intended to regulate the procedure to be followed by civil courts.

Question 7

Arbitration and conciliation act 1996

Answer 7

An act to consolidate and amend law relating to domestic arbitration, international commercial arbitration and enforcement of foreign arbitral awards.

Question 8

Dispute resolution boards ( ARB)

Answer 8

An effective dispute avoidance, resolution and management mechanism for contractural disputes on large to medium projects. Designed to avoid conflict and if disputes do arise deal with them quickly and effectively. Advantages - save money, ensure project delivery, help maintain relationships.
Cons - not binding

Question 9

Adjudication

Answer 9

Adjudication under section 108 of HGCRA 1996. Widely used in construction. An adjudicator reviews evidence to come to a decision.

Question 10

Advantages & disadvantages of adjudication

Answer 10

Advantages 
- have 28 day time scales - quick 
- cheaper than litigation usually 
- can resolve while contract is ongoing 
- decision is private 
Disadvantages
- costs are not recoverable 
- short time scales - limited time to investigate

Question 11

Arbitration

Answer 11

Covered by arbitration act 1996

One or more arbitrator make a binding decision on the dispute

Question 12

Advantages and disadvantages of arbitration

Answer 12

Advantages 
- cost 
- informal 
- private 
- control - can pick arbitrator 
Disadvantages 
- cant appeal 
- discretion of the arbitrator 
- rising costs - slowly rising cost

Question 13

What is independent expert determination?

Answer 13

The parties agreed by a third party will make a binding decision on them.
Most cases decision will be final and not possible to appeal

Question 14

CAP what is it?

Answer 14

Conflict avoidance process

Contractural mechanism which helps the parties to avoid getting embroiled in prolonged and damaging disputes

Question 15

What are key advantages of the CAP?

Answer 15

• supports collaborative working culture
• provided all parties with information and guidance from an impartial professional.
• CAP is not binding
• differences can be settler quickly
• enables parties to identify possible disputes early so as to mitigate risks

Question 16

What is the cap process?

Answer 16

1 . Parties identify an issue which has potential to grow into disputes

2. CAP member will within 5 days of appt contact the parties and set out the basis on which he wishes to proceed. CAP member may invite parties to provide a outline of issue
3. Once an appointment is accepted by both parties, the CAP member will arrange a meeting
4. CAP member will meet with parties & read documents if necessary ask for further meetings to provide explanation
5. CAP member will aim to complete process within 28 days
6. Cap member will deliver the recommendations to parties
7. Recommendations is not binding. If either party decided to not comply, this must be done within 2 weeks if the date of the recommendation.
8. If both parties agree that the matter should be referred back to the CAP member, along with grounds for non-compliance and the response to earlier recommendations.

Question 17

Process of adjudication

Answer 17

Before you begin - check that there is a right to adjudication
Beginning the process - the party bringing the claim serves a Notice of Adjudication
Within 7 days - agree on an adjudicator
Between 7-14 days - responding party serves a response
Within next 7 days - referrer replies and there is an opportunity for responder to make further representations
Within 28 days - adjudicator reaches binding decision