Conflict Avoidance and Dispute Resolution

Question 1

Dispute Resolution Procedures

Answer 1

N-MEAAL
* Negotiation (ADR)
* Mediation and conciliation (ADR)
* Expert determination (ADR)
* Adjudication (ADR)
* Arbitration
* Litigation
* Dispute boards (ADR)
* ADR (Alternative Dispute Resolution) - alternative to Litigation and Arbitration

Question 2

The 3 main ways of dispute resolution?

Answer 2

1. Negotiation
2. Mediation
3. Adjudicative process

Question 3

What are the techniques to avoid conflict?

Answer 3

Good management - proactivity managing, planning and the early rising of issues.
Clear contract documentation - ensure contracts are in place, avoid abiguity, identify risk.
Partnering and alliancing - building cooperation, team working, joint problem solving, an emphasis on successful project delivery.
Good project management - proactively managing all aspects of time, money and risk.

Question 4

What are the advantages of ADR?

Answer 4

• Speed
• Informal - outside court
• Greater opportunity for negotiation
• Cost
• Confidentiality

Question 5

Negotiation…

Answer 5

parties involved work out between themselves how to resolve any issues that have arisen.

Question 6

What are the benefits of negotiation?

Answer 6

• In the event of a disagreement, all other dispute resolution procedures are still available.
• Generally non-binding unless a contract is produced out of the agreement.
• Cheapest form of dispute resolution.

Question 7

Mediation…

Answer 7

use of neutral mediator to facilitiate discussions with no decision making authority. Confidential and informal. Normally ‘without predjudice’.

Question 8

Benefits of Mediation and Conciliation?

Answer 8

• In the even of failure, all other dispute resolution procedures are still available.
• Generally non-binding but can be binding if a contract is produced out of the agreement.
• Cheaper than Litigation or Arbitration.

Question 9

Expert determination…

Answer 9

Expert appointed by parties (or by RICS Dispute Resolution Service) to investigate. Can use own opinion or evidence to decide. Parties bound by decision.

Question 10

Factors of expert determiniation?

Answer 10

• Decision of expert will be final and it is not possible to appeal the decision.
• Cheaper than Litigation or Arbitration.

Question 11

RICS Expert Witness Guidance

Answer 11

RICS Practice Statement & Guidance Note
Surveyors acting as expert witnesses - 4th edn, Geb 2023

Question 11

Arbitration…

Answer 11

Quasi-judge role in accordance with Arbitration Act 1996. Parties bound by decision. Arbitrators can order court decision and have specialist knowledge. Surveyors can act as arbitrators having passed Chartered Institute of Arbitrator exams.

Question 11

Adjudication…

Answer 11

uses own knowledge to reach legally binding decision in contractual process. Strict 28-day timescale imposed by legislation. Common for construction payment disputes.

Housing Grants, Construction and Regeneration Act 1996

Question 11

Litigation…

Answer 11

Procedure governed by the Civil Procedure Rules. It is the most time consuming and expensive form of dispute resolution.

Question 12

What is Alternative Dispute Resolution (ADR)?

Answer 12

Refers to processes which are alternative to the traditional binding procedures of litigation and arbitration.