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Alex Martin APC > Conflict Avoidance and Dispute Resolution > Flashcards

Conflict Avoidance and Dispute Resolution Flashcards

1
Q

What is CAP?

A

Conflict avoidance process – RICS developed with transport for London and network rail.

  • Non-binding recommendation by a third party
  • Each party pays half cap fees
  • No upfront fees – CAP advisor only bought when needed
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2
Q

How does CAP differ from mediation?

A

CAP is a more open process and collaborative. Mediation is often when dispute is fully manifested, whereas CAP much earlier.

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3
Q

What is the Conflict Avoidance Pledge?

A
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4
Q

What are the key benefits of CAP?

A

There are no upfront costs to cap – but would with dispute board. It is important to encourage collaboration, and the project manager is at the heart of this.

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5
Q

What RICS literature is there on conflict avoidance?

A

Conflict Avoid and Dispute Resolution in Construction - guidance note.

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6
Q

Why do disputes arise?

A

Typically from ambiguity and unclear definition of risks.

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7
Q

What are some examples of good practice for conflict avoidance?

A
  • Clear tender documentation
  • Good risk management procedures
  • A clear dispute resolution procedure established from the outset
  • Good project management
  • A good understanding of the client’s objectives and requirements
  • Good record keeping - formally issuing minutes, and formally recording agreements made informally.
  • Regular reporting.
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8
Q

What are the three pillars of dispute resolution?

A

Negotiation, mediation, adjudication.

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9
Q

What are the common forms of dispute resolution available?

A
  • Negotiation
  • Mediation
  • Conciliation
  • Expert determination
  • Adjudication
  • Arbitration
  • Litigation
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10
Q

What are alternative dispute resolution procedures (ADRs)?

A

Alternative Dispute Resolution (ADR) refers to methods of resolving disputes outside of traditional litigation.

This may help to reduce legal costs and maintain relationships between parties.

JCT promotes the use of mediation, and states that parties mut give serious consideration to mediation. Professional bodies such as RICS provide lists of mediators that can be agreed at the point of contract.

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11
Q

What is the dispute resolution procedure in place on your projects?

A
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12
Q

What theories of negotiation are you aware of?

A

RADPAC

  • Rapport
  • Analyse
  • Debate
  • Propose
  • Agree
  • Close
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13
Q

What is negotiation?

A

Two parties negotiate and work together without external input to reach a decision.

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14
Q

What is mediation?

A

Mediation is where the parties agree on an independent third party mediator, who provides a non-binding decision.
- Low cost
- Helps to maintain relationships
- Relatively quick compared to other dispute resolution procedures.

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15
Q

What is conciliation?

A

Similar to mediation, but the facilitator is more direct in reaching a recommendation.

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16
Q

What is expert determination?

A

Legally binding - a subject matter expert reviews the dispute and provides a binding decision. This is less formal than adjudication and mat help to maintain relationships between parties.

17
Q

What is adjudication?

A

Legally binding, but a faster and more cost effective solution that arbitration or litigation. Decision must be made within 28 days of referral, and can be extended to 42 days if agreed by both parties.

18
Q

What is arbitration?

A

Lawsuit without court involvement that provides a binding decision with little scope for appeal. It is also private so no public record.

19
Q

What is litigation?

A

A claim in the civil courts. Parties are legally compelled to comply with timescales, and there are defined rights for appeal. Greater time and cost involved than arbitration, and proceedings are legally conducted in public. Subject to appeal.

20
Q

What is an expert witness?

A

An individual with expertise in a field which is greater than the layman. Required for informed into a decision.

21
Q

What is your process for dispute resolution on your projects?

A

My preference is always to attempt to resolve any dispute via negotiation if possible, as it minimises cost and helps to maintain relationships.

Within the contract, I advise my client to define an adjudicator, to minimise further disagreement following a dispute. This provides a binding decision and is agreed by all parties at the outset.

22
Q

What is the TCC?

A

A specialist court that deals with disputes in the technology and construction industries.

23
Q

What is the RADPAC model for negotiation?

A
  • Rapport
  • Analysis
  • Debate
  • Propose
  • Agreement
  • Close

Not necessarily linear, very much iterative. Agreement isn’t always achieved.

24
Q

Is arbitration alternative ADR?

A

Yes, everything other than litigation is ADR.

Alex Martin APC (25 decks)

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