Conflict avoidance and dispute resolution & Data Management Flashcards
What are the common causes of disputes?
- Miscommunication / misunderstanding / non-agreement on costs / scope creep
- Valuation / Party Wall / Boundary / Planning refusal or conditions / Environmental Impact Assessment (EIA) Disputes / Rights of Way Disputes / Easement Disputes / Professional Negligence / Compulsory Purchase Orders (CPOs)
What are some ways to reduce conflict?
- Clear communication between stakeholders, close management of risks, well documented, understood and fair contract documentation.
Risk management contribution to dispute avoidance
identifies and mitigates potential issues
Early warning systems contribution to dispute avoidance
alerts of emerging problems, allowing for corrective action.
Partnering techniques contribution to dispute avoidance
collaborative relationships, promoting open communication and shared problem-solving
Clear and robust client briefings contribution to dispute avoidance
shared understanding of project requirements, enhanced communication
What are some theories of negotiation and the role of effective communication and negotiation
- Principled Negotiation – Fisher and Ury – separate people from problem / interests not positions – mutual gain.
What different styles can you adopt when negotiating?
- Competitive (win / lose)
- Collaborative (win / win)
- Accommodating (lose to win)
- Avoidance
What is dispute resolution?
Action to resolve contractual disagreements between parties.
List the 5 Dispute resolution procedures
- Negotiation
- Mediation
- Adjudication
- Arbitration
- Litigation
Difference between Adjudication and Negotiation
Adjudication = statutory right and if one party wishes to use it, the other must concur.
Negotiation and mediation are voluntary processes and either may lead to a binding result
What Alternative Dispute Resolution methods?
– Mediation and conciliation
– Dispute Resolution Boards (DRBs)
– Dispute Resolution Advisers (DRAs)
– Adjudication
– Independent Expert determination
– Arbitration
– Professional Arbitration on Court Terms (PACT)
– Court proceedings/litigation
Is the outcome of mediation legally binding?
If a legally binding agreement is formed
What is the roles of a surveyor as an expert witness?
- Used in Adjudication, arbitration, and litigation
What is the RICS guidance for expert witnesses?
- CPD courses under RICS for Certifications
- RICS Professional Statement: Surveying Expert Witness Reports (3rd edition) – principles
- RICS Practice Statement: Dispute Resolution
What are some bodies and services available?
- RICS Dispute Resolution Service (DRS) – nominations of adjudicators, arbitrators, meiators and experts.
- The Centre for Effective Dispute Resolution (CEDR) – mediation
- The Chartered Institute of Arbitrators (CIArb) – global – arbs, mediators – training and nominaitons
Give an overview of RICS Global Professional Statement on Conflict of Interest regard dispute resolution
- Impartiality of the Dispute Resolver / Expert Witness Independence / Avoiding Bias / Managing conflicts
What is the difference between Mediation & Conciliation?
Major difference is power of the third party: Mediator facilitates discussion without opinionating whilst the Conciliator comments on the parties and can give a recommendation for settlement. And presence in person.
Why are ADR methods required in the contract?
The Housing Grants, Construction & Regeneration Act 1996 stipulates that they should.
What if a contract does not have a provision for adjudication?
- The parties have a statutory right to adjudication assuming that the contract qualifies under the Construction Act.
Who appoints the adjudicator?
Named in the contract
or notimated by the body identified (RICS)
Outline some pros and cons of Negotiation
Advantages: Informal / Non-adversarial / Private / Quick / retain control
Disadvantages: May not reach just conclusion / some facts may be witheld / non-binding
Outline some pros and cons of mediation
Adv - similar to negotiation, lead to less adversarial arbitration/litigation / quick
Disadv - no specialist advice / generally non-binding
What is Adjudication?
legal process by which an adjudicator reviews evidence and argumentation set forth by opposing parties to come to a decision
Outline some pros and cons of Adjudication
Adv - Private / statutory right / decision within 28 days / binding / open to see evidence
Disadv - costly (even if successful) / adversarial
What is arbitration?
A form of ADR, a legal technique to resolve disputes outside of court. A third party reviews the case and imposes a decision that is legally binding on both sides
Three procedures available: Documents only (30 days), short hearing (30 days) & full procedure.
Key differences between Adjudication and Arbitration?
Adju is 28 days. Arb is often much longer.
Adj can be challenged through further legal appeals.
Adjudication is usually decided on paper
Pros and cons of arbitration?
Adv - Private / Arbitrator usually has experience in the field / call witnesses
Disadv - long / expensive / limited appeal
What is Litigation?
a lawsuit within a court of law
Pros and cons of litigation?
Advantages - Binding although can be appealed
Disadvantages - Formal / Public / Expensive
What are the different styles of conflict avoidance?
- Confronting: collaborative, confront the issue rather than each other.
- Compromising: give and take.
- Smoothing: more accommodating than compromising, involves sacrifice.
- Forcing: force your view to complete disregard of other view.
- Avoiding: postponing, temporary.
What is the RICS Alternative Dispute Resolution (ADR) role in complaints handling procedure?
- Stage 2 – No resolution (Indep Redress / ADR)
o Complaint to an independent redress provider (ADR - approved by RICS)
o Centre for Effective Dispute Resolution for consumer and bus to bus
What is Expert determination?
Expert determination is a private process where an independent technical expert is appointed (by the parties themselves or by an appointing body such as RICS) to conduct their own investigation and reach a decision on the dispute. Expert determination is often used when the dispute focuses on a technical issue rather than a legal one.
What are some published sources of data?
o BCIS / BCO
o Dun and Brad St.
How project information is stored within your employer’s organisation?
Gleeds all data is stored in allocated folders on a secure drive. The names of the folders and layout are consistent to enable simple navigation within the company and project files which is audited regularly.
What legislation applicable to data management and data access?
o Data Protection Act 2018 – supp GDPR to tailor to UK – law enforcement and agencies
o GDPR - individuals more control over their personal data – access and rectification and removal
Benefits of BIM
- Info sharing / detailed visualisation helps solves problems / Efficiency / Asset Management / safety through visualisation of risks
Challenges of BIM
- Implementations Costs / Training and Expertise in software / data ownership and IP rights can be complex
Dangers of BIM
- Data Security / Data Inaccuracy can cause errors or delays
What do ‘levels’ refer to in BIM?
- Level 0: Unmanaged 2D CAD.
- Level 1: Managed CAD in 2D or 3D format with data structure & format.
- Level 2: Managed 3D environment that is linked to commercial data and may utilise 4D construction sequencing and/or 5D cost information.
- Level 3: Fully integrated and collaborative process that utilises 4D construction sequencing, 5D cost information and 6D project lifecycle management information.
With regards Gleeds’ own information management system; what is it and how does it help you?.
- Shared intranet system.
- Project documents e.g. contractual docs, drawings, design info, certificates are all uploaded and stored in folders conforming to a standard taxonomy – consistency of approach.
- Taxonomy can be tailored to individual projects.
- Confidential projects can have restricted access.
- audited externally at set points throughout the year for adherence to the quality standard ISO9001
