Conflict Avoidance and Dispute Resolution Procedures Flashcards
How would you avoid conflict in the first instance?
- Clearly state in tender documents and contract documents exactly what is required of all parties
- Ensure continuous effective communications between all parties
- Put everything in writing
- Follow company procedures and policy
- Follow RICS standards and guidance
What in your opinion is the cause of most disputes?
- Commercial aspects
- Unclear or conflicting spec/drawings
- Teams under pressure
What does ADR stand for?
Alternative Dispute Resolution
- Negotiation
- Mediation
- Conciliation
- Adjudication
- Arbitration
- Litigation
What are the three pillars of dispute resolution?
- Negotiation
- Mediation
- Adjudication
How does the JCT deal with negotiation?
Nominee for the employer + contractor written into the JCT
What is negotitation?
The process whereby the parties work out between them how to resolve any issues that have arisen. Power to settle the dispute rests with the parties
A quick, inexpensive, and binding resolution is almost always the desired way to settle a dispute.
What is mediation?
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
What is conciliation?
Conciliation is an alternative dispute resolution (ADR) process whereby a third party (the conciliator) is appointed as a neutral and unbiased person to help parties involved in a dispute to achieve a settlement by steering negotiations towards an amicable conclusion
What is the difference between mediation and conciliation?
Mediator only assists with discussions, whereas the conciliator will give their opinion on the outcome. Decision is not binding for either
What is an expert witness?
a person whose level of specialised knowledge or skill in a particular field qualifies them to present their opinion about the facts of a case during legal proceedings.
What is adjudication?
Adjudication is different to other methods of dispute resolution in that, Arbitration, Expert Determination, conciliation, mediation all requires a consensual approach: both parties must agree to take their dispute to any one of those dispute processes. This is not the case with Adjudication.
Specific to construction and enforced by the The Housing Grants, Construction and Regeneration Act 1996
Can you explain the timeframes of adjudication?
One of the parties requests an appointment of an adjudicator by serving a Notice of Dispute. Adjudicator must be appointed within 7 days of serving Notice
Referral Notice must be issued at the end of 7 day period of notification. This sets out the details of the dispute and provides supporting document for the adjudicator to review.
The adjudicator has 28 days from issue of the Referral within which to issue a decision but can be extended by 14 days on agreement from both parties
Who pays for adjudication?
Depends on the terms of the contract. Most standard forms and adjudication rules provide that the parties cannot recover their own expenses in the adjudication.
Both parties are jointly liable for the adjudicator’s fees. Standard forms usually provide that the adjudicator can decide who is to pay their fees.
How is the adjudicators decision enforced?
The decision is binding, the Courts will enforce the decision in summary proceedings
What is arbitration?
Arbitration is a form of alternative dispute resolution (ADR) that provides a final solution to a construction dispute. Arbitration is private, with the aim to resolve disputes fairly, keeping costs and delays to a minimum
