CONFLICT AVOIDANCE AND DISPUTE RESOLUTION

Question 1

What are good conflict avoidance processes

Answer 1

Good Management

Clear Contract Documentation

Good Project Management

Good Record Keeping

Good Payment Practice

Regular Reporting and Proactivity

Question 2

How are good conflict avoidance processes implemented on a day to day basis

Answer 2

Client briefing allows the employers requirements to be understood

Taking minutes is a good for of record keeping

Monthly team meetings

Monthly valuations and interim assessments

Question 3

What is dispute resolution

Answer 3

Actions and processes to resolve contractual disagreements between parties

Question 4

What are the three processes all dispute resolution techniques are built upon

Answer 4

Negotiation

Mediation/Conciliation

Adjudicative Processes

Question 5

Name some forms of ADR

Answer 5

a. Mediation
b. Concilliation
c. Negotiation
d. Expert Determination

Question 6

Name formal methods of dispute resolution

Answer 6

a. Adjudication
b. Arbitration
c. Litigation
d. Dispute Boards

Question 7

What would you consider prior to selecting a form of dispute resolution

Answer 7

a. The cost of dispute resolution in proportion to the claim being sought
b. The timescales involved
c. Impact on business relationships and reputation

Question 8

What is Negotiation

Answer 8

Negotiation is where the parties work out between them how to resolve issues that have arisen. The power to settle the dispute rests with the parties

Question 9

What is Mediation

Answer 9

The parties agree on an independent, third-party neutral system to facilitate discussions between them, with the goal of reaching a settlement.

The power to settle remains with the parties, but the process is led by the mediator.

Question 10

What is Conciliation

Answer 10

The parties agree on an independent, third-party neutral system to facilitate discussions between them, with the goal of reaching a settlement.

The power to settle remains with the parties, but the process is led by the Conciliator, who makes a recommendation

Question 11

What is the difference bewteen Mediation and Conciliation

Answer 11

A Conciliator only acts a ‘messenger’, whereas a Mediator tries to bring the parties together
Conciliator makes a recommendation

Question 12

What is Expert Determination

Answer 12

The parties agreed by a contract that a third party will make a binding decision on them.
In most cases the decision of an expert will be final, and it will not be possible to appeal that decision.

Question 13

What is adjudication

Answer 13

Introduced by the Housing Grants, Construction and Regeneration Act 1996
Adjudication applies under most construction contracts except domestic, nuclear, food & drink
It was introduced to avoid contractors going bust from lengthy Arbitration & Litigation

Question 14

What forces a building contract to have provisions for adjudication

Answer 14

Housing Grants, Construction and Regeneration Act 1996 (Construction Act)

Question 15

What are the key steps and stages to Adjudication?

Answer 15

Either party to a contract may request the appointment of an adjudicator to be made within 7 days of serving a Notice of Dispute
The adjudicator has 28 days from issue of the referral to issue a decision
The period can be extended by 7 days by the referring party or 14 days by mutual agreement
The decision will be binding and enforcable in the TCC

Question 16

What is arbitration

Answer 16

Covered by the Arbitration Act 1996

The contract must contain a written agreement to arbitrate

A binding agreement must have been reached to escalate the matter to arbitration.

Question 17

How are Arbitrational tribunals arranged and what is the process?

Answer 17

JCT industry follows the process of Construction Industry Model
CIM process doesn’t have a formal hearing however on there maybe a short hearing
CIM process is document based

Question 18

What is litigation

Answer 18

Litigation is court hearing based dispute resolution
It is heard in the TCC, where a judge is appointed

Question 19

What are the three stages to a litigation case?

Answer 19

1. Case Management Conference
   Outline how the case will be handled and what info will be needed prior to the hearing
2. Pre-trial Review
   Ensure that all info requested has been provided
3. Final Court Hearing
   The decision is legally binding and enforced

Question 20

What are the differences between arbitration and litigation

Answer 20

1. Arbitration
   a. In order to arbitrate there must be an agreement to enter into arbitration by both parties.
   b. Parties have a wide degree of discretion as to how the proceedings are conducted.
   c. Procedures are similar to litigation with formal submissions by both parties, expert evidence, hearings and a decision by the arbitrator.
   d. It is a private process.
2. Litigation
   a. Litigation differs in that proceedings are conducted in court.
   b. It is a public process that follows civil procedure rules.
   c. Despite having high costs, the process can deal with multi-party disputes and civil procedure rules which aim for accessibility, speed and efficiency.

Question 21

What does CPR stand for

Answer 21

Civil Procedure Rules