Conflict Avoidance and Dispute resolution Procedures Flashcards
How do you avoid conflict?
Keep communication clear and constant
Outline roles and responsibilities
Diligent record keeping including hard evidence like photos
Pre-agreed / understood dispute resolution procedures
What are the three pillars of negotiation?
Negotiation = problem solving between parties
Mediation/conciliation = Third Party Intervention which is not binding
Adjudication = Third party intervention which is not binding
Name some conflict avoidance processes?
- Good Management
- Clear Contract Documentation
- Partnering and Alliancing
- Good Payment practice
- Record Keeping
- Regular reporting and proactivity
What is a dispute?
Where two or more parties disagree on something
What is the scheme for construction contracts?
The Scheme for Construction Contracts (England and Wales) Regulations (also known as The Scheme for Construction Contracts) is a scheme which applies when construction contracts do not comply with the Housing Grants, Construction and Regeneration Act.
Part 1 = makes provisions for adjudication where the contract doesnt
Part 2 = Replaces provisions in the contract in relation to payment that don’t comply with the HG,C and R Act
What are the different techniques of conflict avoidance?
Confronting collaborative = confront the issue rather than each other
Compromising give and take
Smoothing more accommodating, involves sacrifice
Forcing your view to complete disregard of the other view
Avoiding postponing
What is your for conflict avoidance style?
I generally confront the issue as i feel that is the quickest and least adversarial way to avoid conflict, by dealing with facts
I would be forcing when i believe the position is clear cut in order to protect the client.
If you cannot resolve an issue during the meeting what would you do?
II would deal with a dispute by:
* Suggest that the issue be taken which is avoidance and postponing the conflict.
* This allows actions to be agreed to ensure that the information has been provided and digested by both parties.
* I would call each party separately and discuss their thoughts prior to arranging a follow up meeting.
* Sometimes it is not possible for everyone to be happy with a decision.
* I would speak to the unhappy party privately and seek commitment that their performance would not be affected.
How are disputes avoided?
- Robust tender and contract documentation
- controlled change
- informed procurement strategies
- Sensible risk allocation
- Appropriate financing
- Proactive project management
What techniques are available to resolve disputes?
The 3 Pillars of Dispute Resolution
- Negotiation = problem solving efforts of the parties themselves
- Mediation = Mediation or conciliation third party intervention makes a non-binding decision
- Expert determination = An expert determination involves appointing an expert in a particular field to resolve a dispute. This expert is chosen for their specialized knowledge and expertise relevant to the issue at hand. Decision binding unless both parties agree otherwise.
- Adjudication = final outcome is determined by a 3rd party who’s decision is binding. (not chosen ). Quick resolution
- Arbitration is a procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision on the dispute. In choosing arbitration, the parties opt for a private dispute resolution procedure instead of going to court. Longer and more formal process.
- litigation = taking the dispute to court
What are the types of Dispute Resolution?
- Negotiation
- Mediation and conciliation
- Expert Determination
- Adjudication
- Arbitration
- Litigation
What is alternative dispute resolution (ADR)?
Alternative dispute resolution (ADR) is the term used to describe ways of resolving a dispute without having to go to court.
What are ADR techniques?
This stands for Alternative Dispute Resolution and refers to any technique that is not litigation or arbitration.
Advantages of ADR:
* Speed takes less time than court proceedings following the CPR.
* Informality - outside of court.
* Greater opportunity for negotiation.
* Cost less money on professional fees that litigation.
* Quality of decision making “ as its made by experts in the field not judges.
What types is most popular within the construction industry?
Adjudication
What does JCT recommend for ADR?
The methods of dispute resolution are referenced in the Articles:
- Mediation
- Adjudication (adjudicator can be named in contract particulars)
- Arbitration (Appointing body can be named in Contract Particulars)
What is a conflict?
When two or more parties have a difference of opinion arising out of a difference in thought process, attitudes, understanding, interests, requirements. Usually incompatible.
* Arguments
* Negotiation
* Dispute resolution
* Innovation.
Advantages of using dispute boards?
- Confidentially =v any disputes and decisions will remain confidential
- Expertise = Members of the dispute board will have been selected for their knowledge and expertise prior to the dispute
- Flexibility = procedures can be agreed upon and adjusted by the parties as needed throughout the project
- Prevention of disputes = The dispute Board can deter frivolous claims and encourage negotiated settlements, preventing disputes from escalating
- Relationships = The consensual nature of the process helps preserve relationships among parties
Understanding: The dispute board gain a thorough understanding of the project through regular site visits and relationships with team members, unlike a tribunal that is appointed post-dispute.
When is a dispute board appointed and why is this an advantage ?
At commencement of the project. They undertake regular site visits and are actively involved in the construction process, can influence the performance of the contracting parties and has ‘real-time’ value.
Can you name some of the RICS approved ADR / Ombudsman bodies ? Where would you find this information ?
Centre for Effective Dispute Resolution
The property Ombudsman
The property Redress Scheme
Financial Ombudsman Service
Local Government Ombudsman
Adjudicators Office
Contained within the RICS Guidance Note - ‘Complaints Handling’ 1st Edition 2016
What Dispute Resolution method is named in your contract?
JCT = Adjudication.
NEC = Adjudication.
NFDC = Adjudication
What do you understand by Statutory?
Statutory Law (Statue Law) is set down by legislate. bodies
Name some different forms of ADR?
- mediation
- Conciliation
- Negotiation
What are the three formal forms of dispute resolution?
- arbitration
- litigation
- adjudication
What are Alternative Dispute Resolutions? ADR
ADR’s aim to resolve disputes more quickly and cost-effectively than traditional litigation. The key is to select a method that balances economic efficiency with the specifics of the dispute. ADR should preserve business relationships, minimise costs, be timely, maintain confidentiality, and offer flexibility, ultimately leading to higher satisfaction for all parties
what is the conflict avoidance pledge CAP?
CAP is a government-endorsed procedure that can be written into contracts to help parties involved in construction or engineering projects resolve disputes. demonstrates commitment to conflict avoidance - use of amicable resolution procedures to deal with disputes at an early stage
What statute does Arbitration sit under?
The Arbitration Act 1996
what is the property ombudsman and who set it up?
TPO is a government-approved scheme to provide independent redress in relation to disputes between consumers and property agents. The scheme was underpinned by statue in 2007 (estate agents) and 2014 (letting and managing agents) and approved by the UK government to help consumers settle their disputes with property businesses such as estate agents, letting agents and property management agents.
What does without prejudice mean ?
That it cannot be used as evidence in court proceeding or criminal proceedings.
What is the meaning of disclosure ?
allowing a party in arbitration to see a file of the other party.
How do you avoid disputes?
Clear communication
Proactive management
Risk management
Good management skills
Good payment practices
Record keeping
Regular reporting
Taking meeting minutes and agreeing actions
Why is ADR required in contracts?
The Housing Grants, Construction and regeneration act 1996 (the construction act) Stipulates:
- All contracts should allow for adjudication
- Any party i permitted to refer the dispute to adjudication
What if the contract doesn’t have ADR Procedures?
If the contract qualifies under the The Housing Grants, Construction and Regeneration Act 1996 (The Construction Act), both parties have a statutory right to adjudication. If it does not qualify, then the Scheme for Construction Contracts applies.
What is the Scheme for Construction Contracts 2011?
Its a secondary piece of legislation put into contracts upon failure of compliance of the construction act .
- procedure for appointment of the adjudicator and conduction of adjudication
How do you prepare for negotiations?
- Claim notified or received - determine what the issue is and who is involved ?
Initial response and planning – what is your stance? What are your aims and what can you compromise on?
Prepare to meet – detailed planning, negotiation of team selection and roles.
What is an expert witness?
Someone with specialist skills, knowlege, or experience who testifies in court about they believe hap happened in a certain case based on those spacilist kills, knowledge or experience.
Who does the Expert Witness have a duty to?
The court
