Conflict Avoidance & Dispute Resolution Flashcards
What is dispute resolution?
Actions that can be used to resolve a conflict, dispute or claim between parties.
What is conflict avoidance?
Actions to prevent a conflict occurring.
Included:
Ensure continuous communication between all parties.
Put everything in writing to ensure there is always documented evidence.
Follow company procedures and policy.
Follow RICS standards, professional statements and guidance.
What are the different forms of dispute resolution?
Arbitration
Litigation
Traditional binding resolution procedures.
What are the different forms of alternative dispute resolution (ADR)?
Negotiation
Mediation
Adjudication
Conciliation
What is adjudication?
Introduced to allow for construction contract disputes to be resolved more quickly and in a more cost effective way that arbitration and litigation.
Aim is to find a fast working solution to an issue so that parties can quickly resume or continue work under the contract.
How does the adjudication process work?
Party to serve a notice of its intention of adjudication.
Within 7 days the referring party must advise of their statement of case. If not served the adjudication will likely be void.
The referral must contain a detailed explanation and any supporting information.
Within the 7 day period the referring party must secure an appointment with an adjudicator.
Following appointment the adjudicator will set out a timetable. This will permit the other party to submit a response to the referral.
The adjudicator must make a decision within 28 days.
Can the adjudication decision period be extended past 28 days?
Can be extended to 42 days by mutual consent.
Is the adjudication process binding?
Yes, unless the adjudicator has acted outside their jurisdiction.
Is there an appeal process with adjudication?
There is no appeal, but you can take the same dispute to litigation.
What if the building contract does not contain provision for adjudication?
Adjudication became a legal right in relation to construction contracts in the UK when the Construction Act came into force.
Who pays for the adjudication?
Both parties are liable for the adjudicators fee.
The adjudicator usually decides who is to pay the fess and reasonable expenses.
What is the conflict avoidance panel?
A system created by the RICS to raise potential conflicts before they become conflicts.
What would your considerations be prior to selecting a form of dispute
resolution?
The cost of dispute resolution in proportion to the claim being sought.
The timescales involved.
The impact on business relationships and reputation.
What is Conciliation?
This dispute resolution process is similar to mediation and relies on an independent third party to facilitate reaching an agreement/settlement.
Conciliator prepares a recommendation which sets out their solution to the dispute, if neither party dissents from that recommendation or initiates adjudication or arbitration, then the recommendation becomes final and binding.
What is Mediation?
The parties agree on an independent, third party 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.
Mediation encourages a coming together of 2 parties by mutual agreement.
The process can be initiated at any time.
The mediator does not award a winning party.
The process is non binding.
What is negotiation?
Negotiation is where the parties reach an agreement through an informal discussion.
Both parties will agree to settle the dispute either at a high level or in detail and agree to be bound by this settlement.
Suitable for simple matters and it requires cooperation from both parties.
What is the TCC?
Technology and Construction Court
Handles disputes about buildings, engineering and surveying.
Does not typically handle cases with a value less than £250k.
Which contracts does adjudication apply to?
It applies to all construction contracts entered into after the act commenced within England, Scotland and Wales.
What is an expert witness?
A person whose experience and knowledge in a particular field is beyond what is expected of a layman. An expert witness makes their knowledge available to the court or other bodies to help make a reasoned decision.
If a conflict occurs, how would you deal with it initially?
Raise the issue with all parties and try to resolve through communication and negotiation.
Face to face meeting is usually the best way to find a resolution.
What indicates a successful final account negotiation?
Both parties come away happy.
Costs agreed within the clients budget.
Resolved in a timely manner.
What has the construction act changed?
The right to adjudicate & payment provisions.