Conflict avoidance and dispute resolution Flashcards
What is conflict?
A serious disagreement or argument, typically a protracted one.
Where might you come across conflict in practice?
- Contractors carrying out work
- Surveyors not carryout their services diligently
- Disagreements over value
- Ambiguity, not understanding the client’s objectives/ expectations
- Contractual disputes
- Money and times disputes
- Design disputes
What are the techniques to avoid a conflict?
- Should always seek to avoid disputes.
- Know when to use techniques for avoidance and when you should advise the client to seek legal advice.
- Don’t stray into an area that is beyond my scope of expertise.
Techniques include: - Good management - Clear contract documentation - Good project management Good client management - Good construction management - Good payment practice - Provision of services - Record keeping - Regular reporting
How do you manage a conflict?
Stay calm and rational
Avoid passive behaviour
Be assertive but respectful and listen
Investigate the situation (find facts and don’t jump to conclusions)
Let all parties have their say, preferably together and listen.
When you have reached a resolution - record it.
Implement what has been agreed.
What types of dispute resolution procedures are you aware of?
- Negotiation
- Mediation
- Expert Determination
- Adjudication
- Arbitration
- Litigation
- Dispute Boards
What is ADR?
Alternative Dispute Resolution - an alternative method to resolve disputes other than litigation.
What is negotiation?
- The process whereby the parties work out between themselves how to resolve any issues that have arisen.
- In the event of failure to agree then all the other dispute resolution procedures are available.
- Cheapest form of dispute resolution
- Should be the first form taken.
- The ultimate decision to agree remains with the parties.
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.
- Cheaper than litigation and arbitration.
- non-binding
What is expert determination?
- The parties agree by a contract that a third party will make a binding decision on them. The terms are therefore governed by the contract.
- The decision of the expert is final.
- cheaper than litigation
- Can be taken to court for negligence
- Binding
What is adjudication?
- A procedure governed by the Housing Grants, Construction and Regeneration Act 1996 (HGRCA).
- Widely used in the construction industry and applies to building contracts and professional appointments.
- If the Act applies to a contract than either party may request the appointment of an adjudicator to be made within seven days of serving a notice of dispute, and the adjudicator has 28 days from issue of the Referral within which to issue a decision. That decision will bind the parties and in more cases be readily enforceable in the Technology and Construction Court.
- Usually the first recourse in the event of a construction dispute.
- Cheaper than litigation or arbitration.
- Binding
- 28 days strict timetable, although parties can agree to extend.
- Appropriate for delay, disruption, EOT, final account, breach termination of contract.
- Can be subject to appeal at court
What is arbitration?
- Formal process of ADR.
- The decision is called an Award
- Arbitration is the process of bringing a dispute before a disinterested third party for resolution . The third party is called the arbitrator and will hear evidence brought by both sides to make a decision.
- For arbitration to apply, the contract between the parties must contain a written agreement to arbitrate.
- The arbitration is governed by the Arbitration Act 1996
- Thorough consideration of the dispute by a technical expert.
- Arbitrator will give reasons for its decisions.
- Arbitrator has immunity from negligence.
- Arbitration is an alternative to litigate
- Is binding
- Expensive but cheaper than litigation.
- the arbitrator can aware costs
What is litigation?
- the procedure is governed by The Civil Procedures Rules and the nature, complexity and value of the dispute will determine which court will hear a particular dispute.
- Binding
- Expensive
- time consuming
- Parties must have explored alternative resolution prior to proceeding to court.
- Litigation is the last resort.
What are the benefits to ADR?
- Faster
- Cheaper and more economical
- Business relationships could be maintained
- confidentiality can be maintained.
Name an RICS guidance note that advises on dispute resolution?
The RICS’s ‘Dispute Resolution Toolkit’
What is dispute resolution?
Actions to resolve contractual disagreements between parties.
What are the routes to settling a dispute?
- Litigation - via court following the civil procedure rules.
- Mediation - neutral party facilitate discussion to explore solutions - no decision in making authority and not binding.
- Adjudication - contractual process. Strict 28 day timetable and uses own knowledge to reach a legally binding decision.
- Arbitration - Appointed in accordance with the Arbitration Act 1996, parties are bound by this decision. Expensive process.
- Expert determination - expert knowledge, opinion and evidence, both parties are bound by the decision. The expert can be sued for negligence.
What is the difference between arbitration and litigation?
Arbitration is the procedures governed by the arbitration act 1996, must be an agreement by both parties to arbitrate, formal process and hearing and decision made by arbitrator as well as award costs. it’s a private process.
Litigation is proceedings in court. It is a public process following Civil Procedure Rules. Expensive and time consuming process and other dispute resolution must be explored first before going to court.
What does without prejudice mean?
An opposing party cannot subsequently rely upon any document or discussion held which are labelled as such where representation are made to a judicial body.
What does without prejudice save as to costs mean?
it is a phrase stated on a calderbank letter and is an offer for the award of costs following settlement of arbitration.
what is disclosure?
A device that enables either party to disclose the file of the other party during arbitration.
Are you aware of any conflict resolution theory?
Yes, the Thomas and Kimann theory which developed 5 conflict resolution strategies that people use to handle conflict, including avoiding, defeating, compromising, accommodation and collaborating. This is based on the assumption that people choose how cooperative and assertive to be in a conflict. It suggests that everyone has preferred ways of responding to conflict, but most of us use all methods under various circumstances. it is helpful to understand the five methods, particularly when you want to move a group forward.
What do you as a Chartered Surveyor need to ensure you do prior to taking on any work from a new client?
- Check the company is a bona fide company
- Check on the Companies House website to make sure that the company actually exists
- Check there is no conflict associated with the services required
- Ensure the person who is appointing you is authorised to do so on behalf of the company
- Ensure there is something in writing for the instruction
- Provide our company’s standard terms of business
What are some of the facts of adjudication as a dispute resolution process?
Adjudication under law is always a right. The HGCRA encourages adjudication to be specified within contracts with a named adjudicator.
What are the main objectives of dispute resolution?
- Achieving agreement
* Imposing a decision
