Conflict Avoidance & Dispute Resolution

Question 1

How can a dispute be avoided?

Answer 1

1) Ensure continuous, effective communication between all parties.
2) Follow RICS standards, professional statements, and Guidance.
3) Follow company procedures and policies.
4) Put everything in writing and ensure there is well documented evidence.

Question 2

What are the common causes of disputes?

Answer 2

1) Commercial aspects
2) Unclear or conflicting specifications and / or drawings
3) Unclear scope of service
4) Teams under pressure / rushed.

Question 3

How does managing risks and introducing early warning systems reduce the possibility of a dispute?

Answer 3

Managing risks encourages collaboration and to avoid any new and unexpected items. By being proactive rather than reactive it takes the pressure off of teams and rushing, making mistakes / giving unclear instructions.

Question 4

What are the different types of disputes?

Answer 4

Disputes can arise for a multitude of reasons, such as:
1) commercial disagreements
2) Unclear instructions
3) Teams being under pressure & rushing
4) unclear scope of service

Question 5

What is dispute resolution?

Answer 5

Dispute resolution refers to processes that can be used to resolve a conflict, dispute, or claim.

Question 6

What is alternative dispute resolution (ADR)?

Answer 6

ADR refers to an means to resolve a dispute in alternative methods to the legally binding approaches, such as litigation and arbitration.

Question 7

What are the different types of ADR?

Answer 7

1) Mediation / Conciliation
2) Adjudication
3) Negotiation

Question 8

How would you deal with a conflict occurring?

Answer 8

1) Raise the issue with all parties and try to resolve it through communication and negotiation.
2) A face-to-face meeting is usually the best way to find a resolution.

Question 9

What would indicate a successful negotiation?

Answer 9

1) All parties walking away happy
2) Costs agreed within the Client’s budget
3) The negotiation is resolved in a timely manner

Question 10

What is the TCC?

Answer 10

Technological and Construction Court

Question 11

What does the TCC do?

Answer 11

Handles disputes about buildings, engineering, and surveying.

Question 12

What is the value of dispute required for the TCC to resolve?

Answer 12

Typically over £250,000 unless for good reason.

Question 13

What is mediation?

Answer 13

An independent, neutral third party system that facilitates discussions between them, with the goal of reaching a settlement.

Mediation encourages coming together and agreeing. It is by mutual agreement, and it is non-binding.

The mediator does not award a winning party.

Question 14

What is conciliation?

Answer 14

A process similar to adjudication, where a conciliator seeks to facilitate a settlement between parties. The conciliator conducts a process whereby each party states their position and attempts to work on a compromise.

The conciliator prepares a recommendation, and if neither party dissents from that recommendation or initiates adjudication / arbitration, then the recommendation is final and legally-binding.

Question 15

What is the difference between mediation and conciliation?

Answer 15

In mediation, the mediator acts as a facilitator.
In conciliation, the facilitator plays a more direct role in finding a solution to the dispute.

Question 16

What is negotiation?

Answer 16

The process whereby the parties work out between themselves to resolve the issues arisen.

The negotiation ends when both parties come to an agreement, and requires cooperation between both parties.

Question 17

What is an expert witness?

Answer 17

An expert witness is someone who has experience and knowledge in a particular field beyond what is expected of a layman. An expert witness makes their knowledge available to the court or other bodies to reach a just and reasoned decision.

Question 18

What is adjudication?

Answer 18

A means to resolve a dispute quicker and most cost effectively than arbitration or litigation.

Question 19

What are the timelines for adjudication?

Answer 19

1) A party will serve notice of it’s intention to refer the dispute to adjudication.

2) Within 7 days of the notice, the party who served (the referring party) the notice must serve it’s referral (statement of the case). If not, the adjudication will be void.

3) Within the 7 days, the referring party must appoint an adjudicator. This will be a named person in the contract, or if no one is named, the nominating body identified in the Contract.

4) The adjudicator must make their decision within 28 days of the referral, although this can be extended to 42.

Question 20

Is conciliation legally binding?

Answer 20

The conciliator prepares a recommendation, and if neither party dissents from that recommendation or initiates adjudication / arbitration, then the recommendation is final and legally-binding.