Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

RICS APC Building Surveying - Mandatory Competencies > Conflict Avoidance & Dispute Resolution > Flashcards

Conflict Avoidance & Dispute Resolution Flashcards

1
Q

How can a conflict be avoided?

A

Good Management - Proactive in fulfilling duties. Raising issues of concern early.

Clear Contract documentation - Identify main areas of risk and set strategies (e.g. risk register).

Partnering and alliancing - Building co-operation between participants.

Good project management - Proactive management time, money and risk.

Good client management - A good understanding of client objectives and approach to risk to determine how risks can be dealt with in contract docs and during project. Good communication.

Good constructor management - Objective assessment of progress and proactively dealing with issues.

Good design team management - Provision of information within the design team and from the design team to the constructor. Plan and manage potential conflicts between constructor and designers.

Good payment practice - design team and constructor rely on cash flow. Valuations and payments made promptly.

Record keeping - Keep record labour, plant and materials in project. Regularly obtain progress reports and daily site activities.

Regular reporting and proactivity - Keep informed.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

What are the three pillars of dispute resolution?

A

Negotiation - problem solving efforts of the parties themselves. e.g. Neutral fact finding, expert appraisal, early neutral evaluation.

Mediation and conciliation - third party intervention does not lead to binding decision.

An adjudicative process - final outcome determined by third party who impose binding decision. e.g. litigation, expert determination, ombudsman, arbitration.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Name some conflict avoidance processes?

A
  • Good Management
  • Clear Contract Documentation
  • Partnering and Alliancing
  • Good Payment Practice
  • Record Keeping
  • Regular reporting and proactivity
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

What are the dispute resolution techniques?

A

Negotiation
Mediation and Conciliation - Both same in UK
Expert determination
Adjudication
Arbitration
Litigation
Dispute boards

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

What is ADR?

A

Alternative Dispute Resolution

Refers to processes which are alternatives to traditional binding dispute resolution procedures such as litigation or arbitration.

Alternative, as in, it provides a faster and more economic approach and maintain business relationships.

More recently the debate has moved toward appropriate over alternative. E.g. what is the most appropriate
approach.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Explain Mediation and Conciliation

A

Parties agree on independent, third party neutral system to facilitate discussions between them, with the goal of reaching a settlement. Power to settle remains with parties, but process led by mediator.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

What is your for conflict avoidance style?

A

I generally confront the issue as I feel that this is the quickest and least adversarial way to avoid conflict, by dealing with the facts.

I would be forcing when I believe the position is clear cut in order to protect the client.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Explain Expert determination

A

Dispute resolution technique

Parties agreed by contract that a third party will make a binding decision on them. Most cases expert decision is final and not possible to appeal.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Explain Adjudication

A

Dispute Resolution Technique

Introduced s.108 Housing Grants, Construction and Regeneration Act 1996.

Applies not only to construction contacts but also professional appointments.

If the Act applies to the contract - e.g. selected in JCT, then either party can request the appointment of an adjudicator to be made within 7 days of serving a Notice of Dispute. Adjudicator has 28 days from issue of the Referral within which to issue a decision.

The decision will bind parties and, in most cases, be readily enforceable in the Technology and Construction Court (TCC)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

What is the TCC?

A

The Technology and Construction Court - Part of the High Court that deals with construction related litigation.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Explain Arbitration

A

Dispute Resolution Technique

Contract contains written statement of agreement to arbitrate. Resolves dispute outside the courts. Award given by arbitrator.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Explain Litigation

A

Dispute Resolution Technique

  • Parties can refer the matter of dispute to court. Procedure governed by International Institute for Conflict Prevention & Resolution CPR.
  • Nature, complexity, and value of dispute will determine which court will hear the dispute.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Explain Dispute boards

A

Dispute Avoidance and Resolution technique

Dispute Review Boards (DRBs) - Three dispute board members are appointed at the start of the project. The become familiar with the project by reviewing documentation and site visits. When issues arise they make non-binding recommendations. Often asked to resolve disputes between parties to avoid formal disputes.

Dispute Adjudication Boards (DABs) - Same as above but they make formal written decisions that bind parties

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

What types is most popular within the construction industry; and which do you use in your contracts?

A

Adjudication

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Can you name some of the RICS approved ADR / Ombudsman bodies; where would you find this information?

A
  • Centre for Effective Dispute Resolution
  • The property Ombudsman
  • The property Redress Scheme
  • Financial Ombudsman Service
  • Local Government Ombudsman
  • Adjudicators Office

Contained within the RICS Guidance Note - ‘Complaints Handling’ 1st Edition 2016

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Talk me through how you would go about negotiating something?

A
  • I would prepare, as understanding your points fully is critical
  • I would pre-determine what I can afford to give away, know my bottom line
  • Focus on the bigger picture, don’t get stuck on one item
  • Try to negotiate a win/win situation
  • Never accept the first offer
  • Finally, I would negotiate the small deals before the big ones
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

What are the three formal forms of dispute resolution?

A
  • Arbitration
  • Litigation
  • Adjudication
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

What is the conflict avoidance pledge CAP?

A

The conflict avoidance pledge (CAP) has been developed by a coalition of professional and industry bodies, and demonstrates commitment to conflict avoidance and the use of amicable resolution procedures to deal with emerging disputes at an early stage.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

What is the conflict avoidance pledge CAP?

A

The conflict avoidance pledge (CAP) has been developed by a coalition of professional and industry bodies, and demonstrates commitment to conflict avoidance and the use of amicable resolution procedures to deal with emerging disputes at an early stage.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

What act is Arbitration governed by?

A

The Arbitration Act 1996

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

What does without prejudice mean?

A

That it cannot be used as evidence in court proceeding or criminal proceedings.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

What is the meaning of disclosure?

A

Relating to a mechanism allowing a party in arbitration to see a file of the other party.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

What is the Scheme for Construction Contracts 2011?

A

It is a secondary piece of legislation put into contracts upon failure of compliance of the construction act. It sets out a procedure for the appointment of the adjudicator and conduct of adjudication.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

What is an expert witness?

A

Someone with specialist skills, knowledge, or experience who testifies in court about what s/he believes has happened in a certain case based on those specialist skills, knowledge or experience.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

Who do they have a duty to? (Expert Witness)

A

The Courts

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

What is the responsibility of an expert witness?

A

To provide independent, impartial, and unbiased evidence to the court or tribunal.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

What does this Act (The Housing Grants, Construction and Regeneration Act 1996 (The Construction Act) ) require in terms of certifying contractor’s requests for payment and invoices etc?

A

There must be a “due date” for each payment; there must be a “final date” for each payment; the contract must require a “payment notice” to be given within 5 days of the due date, stating what is to be paid and the basis on which it is calculated – this can be a duty of the payer or the payee.

27
Q

What if a building contract does not contain provisions for adjudication?

A

Parties have the statutory right to adjudication assuming the contract qualifies under the construction act.

The Scheme for construction contracts will apply in its entirely.

28
Q

What enforces the requirement for a building contract to contain provisions for adjudication?

A

The Housing grants, Construction and Regeneration Act 1996. (so called Construction Act)

29
Q

Give me some examples of the requirements of the Housing Grants and Construction Regeneration Act.

A
  • The right to be paid in interim, periodic or stage payments
  • The right to be informed of the amount due, or any amounts to be withheld
  • The right to suspend performance for non-payment
  • The right to adjudication
  • Disallowing pay when paid clauses
30
Q

How do you avoid conflict on a project?

A
  • Ensure that the tender information is clear, concise when tendering the project. i.e. a clear scope of works.
  • If there is a dispute, use a people approach first and try to negotiate an agreement.
31
Q

What could indicate the success of a negotiation on a final account?

A

Both parties come away happy, both parties feel that negotiations were handled in affair and reasonable manner and costs are agreed within cost report budgets.

32
Q

What court deals with construction disputes?

A

Technology and construction courts, nothing less than £250,000.

33
Q

What criteria do RICS require of an ADR / Ombudsman?

A
  • The ADR mechanism must be well established
  • The ADR mechanism must be independent of the firm or valuer
  • The ADR mechanism must use a transparent, accountable and consistent decision-making process
34
Q

What current challenges is Covid and/or Brexit bringing to Conflict avoidance, management and dispute resolution procedures?

A
  • Disjointed teams
  • Communication can come across negative in email
  • Less cohesiveness.
35
Q

What is dispute resolution?

A

Actions to resolve contractual disagreements between parties.

36
Q

What is informed consent?

A

When an conflict of interest has been highlighted to a client who understand and still wants to progress.

37
Q

What are the types of conflicts of interest?

A
  • Party Conflict – working on the same project/instruction but for two separate clients
  • Own Interest – when the duty to act on behalf of a client is compromised by your own personal interests.
  • Confidential information conflict – when you have a duty to present information to one client but have a duty to another client to keep that information confidential.
38
Q

What is an information barrier?

A

A measure put I place as a result of a conflict on interest, to reduce the passing or access of information from within an organisation.

39
Q

What are negotiations?

A

Parties may through an informal private or facilitated negotiation process agree to settle the dispute either at a high level or in detail and agree to be bound by this settlement

40
Q

What is the difference between mediation and conciliation?

A

Mediation:

The process of mediation is about resolving disputes between parties and a third-party mediator will support both parties in coming to an agreement.

Conciliation:

As an alternative method of dispute resolution, Conciliation is when a third party is appointed to help settle the disputes by persuading both parties to reach an agreement.

41
Q

What are the advantages of Arbitration?

A
  • Cheaper
  • Confidential
  • Less formal than the courts.
42
Q

What are the forms of Arbitration?

A

Adhoc, short hearing and document only

43
Q

What is the Adjudication Process?

A
  • 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.
44
Q

Is Adjudication binding?

A
  • Adjudication decisions are binding unless and until they are revised by subsequent arbitration or litigation after practical completion, or by agreement between the parties (hence the term ‘pay now argue later’).
  • There is no right of appeal and limited right to resist enforcement.
  • Generally, adjudicators do not have the power to award costs (other than their own fees and expenses).
  • Adjudication must adhere to strict timescales and typically takes up to 28 days.
45
Q

Why would you choose litigation?

A

Litigation allows you to bring multiple disputes to the table to be heard and can bring unwilling parties in.

46
Q

What is the difference between Mediation and Conciliation?

A
  • Mediation is a voluntary procedure, which involves the appointment of a third party mediator, who will help to facilitate negotiations between parties. Them aim of mediation is to help the parties reach an amicable agreement.
  • Conciliation is also a voluntary procedure, which involves the appointment of a third party Conciliator. The role of the conciliator is to also facilitate negations, however the Conciliator will create a settlement proposal.
47
Q

What is the RICS dispute resolution service?

A
  • RICS Dispute Resolution Service (DRS) is the worlds oldest and largest provider of alternative dispute resolution (ADR) services in the land, property and construction industries.
  • Over the last four decades, DRS has appointed dispute resolvers in nearly a quarter of a million cases.
  • Internationally, DRS resolves around $2 billion US dollars worth of disputes every year keeping these cases out of the courts.
48
Q

Is an Adjudicators decision enforceable?

A

Yes this can be enfroceed via the TCC.

The successful party in the adjudication (claimant) should apply to the Technology and Construction Court (TCC) to enforce an adjudicator’s decision.

49
Q

Can you expand on what early warning systems are?

A
  • Factors or red flags that illude to the requirement for dispute resolution at a later stage.
  • They work both ways for the Project Manager and Contractor, each can use the system to inform the other of a potential issue.
50
Q

Why is it important to define the client objectives and your scope of works at an early stage?

A

To ensure the client understand my involvement and fees in relation to the works.

51
Q

Why might you want to keep disputes out of the courts?

A

For costs and reputational damage

52
Q

Why might you choose Arbitration?

A
  • Leads to a private resolution, so the information brought up in the dispute and resolution can be kept confidential.

This could be enticing for well-known public figures or clients in business disputes because all evidence, statements, and arguments will be completely confidential.

53
Q

Who can be an Arbitrator?

A

There are no legal requirements to becoming an arbitrator.

However, where disputes involve issues of law, having a law degree is usually most advantageous. If the dispute involves issue of fact, then someone who is an expert in that particular sector may be the most suitable arbitrator.

54
Q

How does Arbitration work?

A

The arbitrator listens to both sides, looks at the evidence you’ve sent in and decides what the outcome should be.

In some cases, the arbitrator may choose to have several meetings with you both. When the arbitrator makes a decision, this is called an award and it’s legally binding.

55
Q

Is the Arbitrators decision legally binding?

A

Yes

56
Q

What is the difference between Arbitration and Litigation?

A

Arbitration is a form of dispute resolution which can be used to settle business disputes outside of court. This differs to litigation, which results in the Court imposing a binding judgement on the parties.

Litigation is a last resort, as it is more formal, costly and time-consuming than arbitration.

57
Q

What is the difference between Arbitration and Adjudication?

A

In both arbitration and adjudication, an independent third party will decide disputes in binding cases dealing with individual conflicts. Though arbitration and adjudication are two dispute-resolving methods, adjudication is generally the last choice, used when arbitration and conciliation fail to resolve the issue.

58
Q

What is the HGCRA 1996?

A

The Housing Grants, Construction and Regeneration Act 1996 (HGRA - also known as the Construction Act) is intended to ensure that payments are made promptly throughout the supply chain and that disputes are resolved swiftly. Provisions of the act include: The right to be paid in interim, periodic or stage payments.

59
Q

Why might you use adjudication?

A

Allows for construction contract disputes to be resolved on an interim basis more quickly and cost-effectively than resolution through arbitration or litigation.

It’s legally binding

60
Q

What is a risk management mechanism you can use in the contract? (NEC)

A

Early Warning Notice

61
Q

How does adjudication work?

A
  • An adjudicator uses their own knowledge and investigations
  • Weighs the evidence presented by the parties in order to reach a legally binding decision
62
Q

Is the decision of the Adjudicator binding?

A

Yes, legally binding

63
Q

How do you maintain business relationships?

A
  • Offer value to others

-. Regularly check in

  • Learn and share about goals
  • Be yourself
  • Ask for feedback

-Express your gratitude

  • Give praise and encouragement
64
Q

What are the 3 types of conflict?

A
  • Own Interest
  • Party Interest
  • Confidential Information Interest

RICS APC Building Surveying - Mandatory Competencies (13 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions