Conflict Avoidance & Dispute Resolution Flashcards
What measures would you take to avoid conflict in the first instance?
1) Clear and concise contract terms (no ambiguities)
2) Good client care
3) Being open and transparent
4) Keep good records
5) Follow all agreements with written confirmation
6) Follow RICS guidance
What are the ADR’s?
1) Negotiation
2) Adjudication
3) Mediation
4) Conciliation
What is a negotiation?
A structured process which seeks to resolve a settlements position on a dispute. The power to settle remains with the parties.
What is mediation?
The appointment of a third party who helps to facilitate both parties to reach and agreement or settlement. The power to settle remains with the parties, but the mediator will lead discussions.
What is an adjudication?
A bespoke ADR within the construction industry, which is a formal process with the objective to resolve dispute quickly. Either party may notify the other of an adjudication which kick starts the process. The process lasts around 6 weeks. the process is binding and cannot be appealed.
What is conciliation?
The same as mediation except in conciliation, the conciliator can make suggestions / proposals.
What is litigation?
An expensive and time consuming civil court case used to resolve a dispute, the decision is ruled by a judge and is binding. The judges decision is final and may not be appealed.
What is Arbitration?
A faster and private form of litigation where an arbitrator is appointed rather than a judge.
What is the default dispute resolution procedures in JCT & NEC contract?
JCT - Mediation, adjudication then Arbitration
NEC - Adjudication then Arbitration/litigation
What are two advantages and disadvantages of negotiation?
+ No costs involved
+ Able to maintain a relationship
- May have to concede on something despite being right
- No agreement is legally binding
What are two advantages and disadvantages of mediation?
+ Low cost solution
+ Power remains with the parties
- Less enforceability and relies on both parties co-operating
- Often overturned with litigation
What is the difference between mediation and conciliation?
Conciliators have more power and can give there opinion or recommendations, whereas a mediator is simply there to facilitate discussions and keep both parties on the right track.
What are two advantages and disadvantages of Arbitration?
+ Legally binding decision
+ Findings remain private
- Expensive/time consuming
- Damages working relationship
- Limited right to appeal
What are two advantages and disadvantages of Adjudication?
+ Fast paced process with strict time scales
+ Designed for construction project, so adjudicator has experience in the field
- Damaged relationship
- Can be taken to arbitration/litigation if either party is not happy with the outcome
What are the timescales of an adjudication?
1) Either party can serve a notice on the other party
2) Within 7 days, the referring party must serve a referral, setting out an explanation of their claim.
3) Within the 7 day period an adjudicator is appointed, which is either a named person or using a nominating body
4) The appointed adjudicator will set out a timetable which includes the response date for the other party.
5) The adjudicator then has 28 days to make his/her decision
6) The decision period can be extended to 42 days upon mutual agreement of both parties
