Conflict avoidance and Dispute Resolution (Level 1)

Question 1

How is conflict avoidance managed within TfL?

Answer 1

TfL and its contractors have worked with RICS to develop the Conflict Avoidance Panel. CAP is a panel of between one and three people that can be appointed at short notice when issues arise and produce a non-binding recommendation within 21 days of the appointment.
This is non binding

Question 2

Give me an example of how you would avoid a conflict?

Answer 2

• Quality Check to Contract Information and Works Information
• Supplier management
• Good project management

Question 3

What is ADR?

Answer 3

Alternative Dispute Resolution (ADR) provides a confidential and alternative method of tackling legal disputes which avoids going to court.

Question 4

Name the non-formal types of ADR?

Answer 4

• Facilitation – neutral party helps negotiation
• Mediation – helps to point out differences to agree issues
• Negotiation – Parties try to come to an agreement

Question 5

Name the formal types of ADR?

Answer 5

• Expert Determination
• Arbitration
• Adjudication.

Question 6

What do you understand by the term conflict?

Answer 6

A conflict of interest is a situation in which an individual has competing interests or loyalties.

Question 7

Can conflict be good?

Answer 7

Yes
Can provide solutions to problems
Challenging old processes
Creates new opportunities

Question 8

How can conflict be bad?

Answer 8

• Drives bad behaviour
• Isolated working
• Detrimental to the project’s objective.

Question 9

How can we avoid conflict pre contract?

Answer 9

Appropriate Contract Selection
Appropriate Risk Allocation
Quality Check to Contract Information and
Works Information
Tender Scoring

Question 10

How can we avoid conflict post contract?

Answer 10

Proper administration of the Contract
Highlight issues early
Keep up to date, logically correct programmes – push for Accepted Programme
Proactive Risk Reduction Meetings
Keep Minutes and Actions

Question 11

What is mediation?

Answer 11

Mediation is a way of settling disputes in which a third party, known as a mediator, helps both sides to come to an agreement that each considers acceptable

Question 12

What is adjudication?

Answer 12

Adjudication is a compulsory dispute resolution mechanism that applies to the UK’s construction industry.
Statutory adjudication was introduced by the Housing Grants, Construction and Regeneration Act 1996 (Construction Act 1996).
Is a 28-day procedure (although the parties can agree to extend this period).
described as a “pay first, argue later” mechanism for resolving disputes
Interim binding

Question 13

What is arbitration?

Answer 13

Arbitration is a procedure in which both sides agree to let an impartial third party, the arbitrator, decide the case.
The arbitrator may be a lawyer, or may be an expert in the field of the dispute.
Legally Binding

Question 14

What is litigation?

Answer 14

Litigation is the process of engaging in or contesting legal action in court as a means of resolving a dispute. The court is able to enforce or determine one party’s rights or obligations

Question 15

What is expert determination?

Answer 15

Expert determination is a process in which an independent third party who is an expert in the subject matter is appointed to decide the dispute. The expert’s decision is binding on the parties

Question 16

How do we do it under the Contract?

Answer 16

Either Party has the right to bring litigate action
As long as the Parties are bound by a Construction Contract, either Party has the right to Adjudicate at any time.
Options W1 (all other contracts outside of W2) and W2 (for UK where it is a Construction Contract) of NEC3 and W3 of NEC4 are the Dispute Resolution options.

Question 17

What is the adjudication process?

Answer 17

• Notification of Adjudication from one party to another.
• From receipt of notification, parties have up to 7 days to appoint the adjudicator.
• Adjudicator will review parties cases, and make their decision within 28 days. (This can be extended to 42 days)
• The adjudicator does not have the power to award costs, unless the parties agree to grant him this power.