Conflict Avoidance and Management Flashcards
What are causes of dispute?
Differing terms between parties
Poor construction of contract/agreement
Lack of open communication between parties
How should a contract be written to avoid dispute?
Be applicable to type of work and location
Includes warnings for parties to communicate problems early on
Good contract management
Viable Compensation Event Procedure (CEP)
No ambiguity
Simple English, avoiding legal terms and jargon
What are examples of Alternative Dispute Resolution (ADR)?
Mediation
Arbitration
Conciliation
Adjudication
Independent Expert Determination
What are the benefits of ADR over litigation?
Quicker
Less formal
Cheaper
Private
What is mediation?
Mediator helps parties reach an agreement themselves.
May gives suggestions but wont advise.
Parties then sign document agreeing to the settlement.
What is arbitration?
More formal than mediation.
Tribunal process
Independent arbitrator who hears both sides of the dispute before making a decision.
Decision is binding and can be enforced through the courts.
What is conciliation?
What is adjudication?
Subject to contract provisions to the contrary, the adjudicator’s decision is binding unless either party commences court/arbitration proceedings.
Adjudicator is either names in the contract or the parties agree to a nominating body (usually RICS adjudication service).
Party who wants to enforce adjudication must issue a notice to the nominated person/body and they must appoint an adjudicator within 7 days.
No opportunity to voice opinion, only the review of documentation.
Decision is made within 28 days.
Both parties must meet their own costs unless they have agreed for the adjudicator to have the power to award costs.
What is PACT?
What is Independent Expert Determination?
What is the RICS Dispute Resolution Service?
Helps find the right ADR solver, provides and explains options.
What are methods for avoiding dispute?
Risk management (early warning)
Partnering (alliancing)
Effective client briefing
Conflict Avoidance Pledge
Dispute Resolution Board
Dispute Resolution Advisor.
How is an early warning system implemented in regards to risk management?
Identify risk areas so all parties can deal with potential problems before they happen.
Implemented throughout a project to assess how risks previously identified are currently performing.
Early warning meeting should discuss how to mitigate and avoid impacts on the project.
Contract should include obligations for parties to identify and communicate problems early.
What is partnering (alliancing)?
A collaborative management approach that encourages openness and trust between parties to a contract.
The parties become dependent on one another for success, and this requires a change in culture, attitude, and procedures throughout the supply chain.
Most used on large, long-term or high-risk contracts.
Contract should specify that parties are required to work together to find solutions and actions for the benefit of all involved.
What is a Conflict Avoidance Pledge?
Demonstrates commitment to conflict avoidance and the use of amicable resolution procedures.
