Conflict Avoidance & Dispute Resolution Flashcards
What is dispute resolution?
Processes used to resolve a conflict, dispute or claim
What is ADR?
Alternative Dispute Resolution - refers to the alternatives to the traditional binding procedures of Arbitration or Litigation.
What are the main forms of ADR?
- Negotiation - parties work out disputes by themselves
- Mediation - parties agree on an independent party to facilitate discussions to reach a settlement. Power still remains with the parties.
- Adjudication - a legal alternative to arbitration and litigation. Deigned to allow for disputes to be resolved more quickly and cost effectively. Power is with the adjudicator.
What is Mediation?
3rd party is appointed to facilitate the mediation between the two parties so that they can reach an agreement on their own.
What is expert mediation/conciliation?
Same as mediation but mediator/conciliator forms their own opinion to help facilitate the discussion.
What is arbitration? (Not ADR)
A lawsuit without the court involvement
Undertaken by the TCC (Technology and Construction Court).
Parties’ agreement gives arbitrator the power to issue a legally binding decision.
What is Adjudication?
Quicker, more cost effective solution to arbitration or litigation. Objective is to provide solution so parties can resume quickly or continue to work under the contract.
Governed by HGCRA.
What is the HGCRA?
Housing Grants, Construction and Regeneration Act 1996
What is the difference between expert witness and expert determination?
Expert witness gives evidence or is called in as a subject matter expert.
In expert determination, the appointed expert isn’t a witness.
What happens if your contract doesn’t include for adjudication?
Doesn’t matter. Under the Housing Grants and Regeneration Construction Act (HGRCA), anyone has a right to adjudication.
Section 108 of HGRCA introduced right to adjudicate.
What is the RICS guidance for conflict avoidance?
Conflict avoidance dispute resolution in construction black book.
When can mediation become legally binding?
Only when the parties involved reach an agreement and sign a settlement agreement. This signed agreement is then enforceable by law.
What is the Conflict Avoidance Pledge?
A pledge to work proactively and in a collaborative manner and to try and resolve differences of opinion prior to them becoming a dispute.
Signing the pledge signals that you’re good to work with and that you maintain good relationships. Also demonstrates that you’re committed to delivering value for money.
What are the main causes of disputes?
- Commercial aspects
- Unclear/conflicting specifications and drawings
- Teams under pressure (poor/rushed decisions made)
- Not enough detail/consideration in building contracts
- Unclear scope of service
How do you avoid conflict in the first instance?
- Ensure continuous, effective communication between all parties
- Put everything in writing as documented evidence (meeting minutes)
- Follow company procedures and polices
- Follow RICS Standards, professional statements & guidance
- Clearly state in tender & contract docs which is required from all parties
Can the decision period of 28 days be extended with adjudication?
Up to 42 days if both parties agree
Is the adjudication process binding?
Adjudicator’s decision is binding unless challenged
- the adjudicator acts outside their jurisdiction (decision must be about issue included in the original dispute) i.e. issuing an EoT when the issue was about a payment
- or is biased towards one party
Is there an appeal process with adjudication?
No. But parties can go to litigation (or arbitration if in the contract)
Who pays for adjudication?
Both parties pay for the adjudicator’s fees.
Adjudicator then decides who pays for the other fees and expenses.
What are the benefits of adjudication?
- Quick resolution
- Binding until challenged
- More cost effective that arbitration and litigation.
What are the advantages and disadvantages of arbitration?
Adv
* Process is private - not public records
* Speed (compared to Litigation)
* Parties can agree on abitrator with relevant expertise
* Arbitrator’s award can be enforced as judgement of court
Disadvantage
* Parties must bear costs of both arbitrator and venue
* Limited appeal rights
* If matter is complicated, arbitrator’s fee may make it uneconomical
What is Litigation?
Involves one of the parties bringing a claim in the civil court
Nature, complexity and value of dispute determines which court will hear disputes
What are the advantages and disadvantages of litigation?
Advantages
* Decision is binding and enforceable
* Defined rights of appeal where errors are made
* Public record
* Judges can make parties comply with time frames and impose sanctions for non-compliance
Disadvantage
* Greater costs
* Longer period to obtain judgement
* Conducted in public
* Can damage relationships
* Judgment subject to appeal
What were introduced in response to the Arbitration Act 1996?
CIMAR - Construction Industry Model Arbitration Rules
What are the rules for ADR?
Civil Procedure Rules (CPR)
What is the difference between dispute avoidance and dispute resolution?
Dispute avoidance is the act of a avoiding a dispute in the first place.
Dispute resolution is the process of resolving a dispute if one occurs.
Give you give me a few examples of techniques to negate conflicts?
Good management, clear and concise documentation, record keeping, regular reporting, proactivity, follow RICS guidance
What is the adjudication process?
1) Referring party issued Notice of Adjudication
2) Adjudicator must be appointed within 7 days of NoA
3) Referral Notice serviced within 7 days of NoA (ref party’s case with supporting evidence and docs)
4) Responding party must serve its response within 7 days of Referral Notice (up to 14 days)
5) Adjudicator permits reply & rejoinder
6) Decision - Adjudicator gives their decision within 28 days of the Referral Notice (extended to 42 days)
7) Decision is binding (unless challenged by arbitration or litigation)
Tell me about the Arbitration Act 1996?
It is key legislation governing arbitration in England, Wales, and Northern Ireland. It provides a legal framework for resolving disputes outside of court through arbitration.
It promotes arbitration as a private, efficient, and enforceable alternative to litigation.
