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Nadine APC > Conflict Avoidance & Dispute Resolution > Flashcards

Conflict Avoidance & Dispute Resolution Flashcards

1
Q

What is dispute resolution?

A

Actions that can be used to resolve a conflict, dispute or claim between parties.

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2
Q

What is conflict avoidance?

A

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.

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3
Q

What are the different forms of dispute resolution?

A

Arbitration
Litigation
Traditional binding resolution procedures.

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4
Q

What are the different forms of alternative dispute resolution (ADR)?

A

Negotiation
Mediation
Adjudication
Conciliation

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5
Q

What is adjudication?

A

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.

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6
Q

How does the adjudication process work?

A

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.

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7
Q

Can the adjudication decision period be extended past 28 days?

A

Can be extended to 42 days by mutual consent.

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8
Q

Is the adjudication process binding?

A

Yes, unless the adjudicator has acted outside their jurisdiction.

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9
Q

Is there an appeal process with adjudication?

A

There is no appeal, but you can take the same dispute to litigation.

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10
Q

What if the building contract does not contain provision for adjudication?

A

Adjudication became a legal right in relation to construction contracts in the UK when the Construction Act came into force.

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11
Q

Who pays for the adjudication?

A

Both parties are liable for the adjudicators fee.
The adjudicator usually decides who is to pay the fess and reasonable expenses.

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12
Q

What is the conflict avoidance panel?

A

A system created by the RICS to raise potential conflicts before they become conflicts.

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13
Q

What would your considerations be prior to selecting a form of dispute
resolution?

A

The cost of dispute resolution in proportion to the claim being sought.
The timescales involved.
The impact on business relationships and reputation.

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14
Q

What is Conciliation?

A

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.

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15
Q

What is Mediation?

A

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.

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16
Q

What is negotiation?

A

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.

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17
Q

What is the TCC?

A

Technology and Construction Court
Handles disputes about buildings, engineering and surveying.
Does not typically handle cases with a value less than £250k.

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18
Q

Which contracts does adjudication apply to?

A

It applies to all construction contracts entered into after the act commenced within England, Scotland and Wales.

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19
Q

What is an expert witness?

A

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.

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20
Q

If a conflict occurs, how would you deal with it initially?

A

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.

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21
Q

What indicates a successful final account negotiation?

A

Both parties come away happy.
Costs agreed within the clients budget.
Resolved in a timely manner.

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22
Q

What has the construction act changed?

A

The right to adjudicate & payment provisions.

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23
Q

What dispute resolution procedures are mentioned in the JCT?

A

Mediation (strongly recommended).
Adjudication (parties have a right, contract says how to notify).
Arbitration (contract says how to notify).

24
Q

What is pre-action protocol?

A

Process to be followed before suing a consultant for negligence.
Designed to speed up litigation and stop wasting court time.

25
Q

What part of JCT SBC mentions dispute resolution?

A

9.2 & 9.3

26
Q

What is a CMT?

A

A client’s monitoring team. They’re used for D&B projects when the design team are novated.

27
Q

What is the jct contract’s preferred method of dispute resolution?

A

Negotiate then Adjudication

28
Q

What is the difference between mediation and conciliation?

A

In mediation, the mediator acts as a facilitator who helps the parties in agreeing.
Conciliation allows the facilitator to play a more direct role in the solution for the dispute. They can make suggestions and give advice.

29
Q

What is expert determination?

A

Process whereby the parties agree to refer their disagreement to an impartial third party and they will then be bound by their decision.
Can choose who the third party is.
More informal and cheaper than litigation and arbitration and can be used to short cut a binding decision.

30
Q

Advantages of expert determination?

A

Provides a cost and time efficient solution for resolving disputes.
An expert can be appointed who is familiar with the specific technical issue.

31
Q

How do you get unambiguous contracts?

A

Poor communication, unclear terms and documents that do not clearly & concisely express how risks are to be dealt with.

32
Q

If you noted that there were ambiguities in a contract, what would you do?

A

Raise the ambiguity with the client.
Clarify the ambiguity with all parties and ask for confirmation of clarification if it is a simple issue.

33
Q

Which ones are binding?

A

Litigation in court.
Arbitration and expert determination are all final.
Adjudication can be referred to litigation or arbitration.

34
Q

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

A

Inability for contractors to meet contract obligations / programme with extended lead times / availability of materials.
Increased costs & time spent trying to agree recovery with client following businesses going under.

35
Q

What is a Dispute Resolution Board?

A

An independent panel of impartial professionals providing guidance to resolve project issues and mitigate their impact during an active construction project. Involved for entire project duration.
Usually consist of three members. Two being technical and one being legal, usually the chairman.
Allows for technical disputes to be fully understood and resolved without the need for external advice.
The members of the board are usually selected by one of two methods:
1. Mutual selection of all board members by the contracting parties.
2. Each party selects one board member and those board members select the third member.
The board meet with the project participants on a regular basis to discuss project status and concerns.
They provide guidance but do not act as a decision maker unless the parties’ contract outlines a procedure for the board to formally hear and resolve disputes.

36
Q

What is arbitration?

A

Essentially a lawsuit but without court involvement.
The parties agree to submit their dispute to an arbitrator who issues a decision which is legally binding on all parties.

37
Q

What are the advantages of arbitration?

A

The process is private.
Faster than litigation.
Parties can agree on an arbitrator.
The arbitrators award can be enforced as a judgement of the court.

38
Q

What are the disadvantages of arbitration?

A

The parties must bear the cost of the arbitrator and the venue.
Limited appeal rights.
If the matter is complicated, but the amount of money involved modest, this may make the arbitrators fee uneconomical.

39
Q

What is litigation?

A

Involves one party commencing a claim in the civil courts.
The courts will hear a dispute in respect of just about anything.
The nature, complexity and value of the dispute will determine which court it is heard in.

40
Q

What are the advantages of litigation?

A

Judges can compel the parties to comply with time frames and can sanction if non compliance.
Judges have the power to protect a parties position pending the final judgement.
They have defined right of appeal in cases where errors of fact or law were made.

41
Q

What are the disadvantages of litigation?

A

Potentially greater costs if the dispute is not well managed or there is delay to the proceedings.
Longer period to obtain judgement.
Generally conducted in public.
Judgement will be subject to appeal.

42
Q

Can you explain in detail the difference between arbitration and
litigation procedures?

A

Arbitration:-
In order to arbitrate there must be an agreement to enter into arbitration by both parties.
Parties have a wide degree of discretion as to how the proceedings are conducted.
It is a private process.

Litigation:-
Litigation differs in that proceedings are conducted in court.
It is a public process that follows civil procedure rules.

43
Q

How and where have you demonstrated conflict avoidance?

A

On my projects I always ensure that I am open and transparent and keep a written record of all communication.
On Lichfield Street I drafted meeting minutes to ensure that all parties were aware of the actions they needed to perform.

44
Q

What can you go to in order to appoint an adjudicator?

A

Chartered Institute of Arbitrators (CIArb)
Chartered Institute of Building (CIOB)
Institution of Civil Engineers (ICE)
Royal Institute of British Architects (RIBA)
Royal Institution of Chartered Surveyors (RICS)

45
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

46
Q

L1 - What is the best way to avoid conflict?

A

State what is required of all parties in the tender/contract docs.
Ensure everything is put in writing to ensure documented evidence.
Act within your scope of competence.
Follow company procedures and RICS standards.

47
Q

L1 - How do you get unambiguous contracts?

A

Poor communication, unclear terms and documents that do not clearly & concisely express how risks are to be dealt with.

48
Q

L1 - If you noted that there were ambiguities what would you do?

A

Raise the ambiguity with the client.
Clarify the ambiguity with all parties and ask for confirmation of clarification if it is a simple issue.

49
Q

L1 - How does record keeping avoid conflict?

A

None of the information can be disputed as it has been recorded.

50
Q

L1 - How do engender cooperation?

A

Ensure that you remain open and transparent.
Ensure that you are approachable.

51
Q

L1 - What do you understand by the term ADR?

A

Alternative Dispute Resolution.

52
Q

L1 - What are the different ADR processes?

A

Negotiation
Mediation
Conciliation
Adjudication

53
Q

L1 - What are the principal differences between ADR processes?

A

Some have 3rd party input, some are legally binding and they have differing timescales.

54
Q

L1 - Which ADR processes are binding?

A

Adjudication, Litigation and Arbitration

55
Q

L1 - Can you name the three pillars of dispute resolution?

A

Negotiation, Mediation and Adjudication

56
Q

L1 - What current challenges is Covid and/or Brexit bringing to Conflict avoidance, management and…?

A

Inability for contractors to meet contract obligations / programme with extended lead times / availability of materials.
Increased costs & time spent trying to agree recovery with client following businesses going under.

57
Q

JCT 2024 Dispute Resolution Procedures

A
  • new provision obligating senior executives from each party to meet and negotiate in good faith to resolve disputes before escalating to formal adjudication.
  • Parties are required to specify their own adjudicating nominating body
  • supplemental provision relating to notification and negotiation of dispute is now a contract condition.

Nadine APC (21 decks)

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