Conflict Avoidance, Dispute Resolution, Mediation, Negotiation & Conciliation

Question 1

269. How can you avoid conflict in the first instance?

Answer 1

• By having clear and concise documentation
• Communication – Continuous and effective communication.
• Collaboration – acting as one time will help resolve issues before they become conflicts
• Put everything in writing
• Follow company policies
• Follow RICS standards, professional statements and guidance

Question 2

270. If conflict occurs how do you deal with it initially?

Answer 2

• Raise the issue with all parties and try and resolve through communication and negotiation
• Face-to-face meetings are usually the best was to find a resolution

Question 3

271. What can indicate the success of a final account negotiation?

Answer 3

• All parities come away happy
• Costs are agreed and within the clients budgets
• The negotiation is resolved in a timely manner.

Question 4

272. In your opinion, what is the cause of most disputes?

Answer 4

• Poorly written documentation that doesn’t convey the clients requirements (conflicts between information sets).
• Commercial aspects – disagreements about money
• Teams under pressure
• Insufficient detail
• Unclear scope of services

Question 5

273. What can you do if I negotiation breaks down and the matter can not be resolved?

Answer 5

Consider Alternative Dispute Resolution or ADR

Question 6

274. What is alternative dispute resolution?

Answer 6

Is the term that refers to several process that can be used to resolve conflict, dispute or claim.

Question 7

275. What does ADR stand for?

Answer 7

• Alternative Dispute Resolution or ADR
• Refers to the alternative to the traditional binding dispute resolution procedures of litigation and arbitration
  Main forms:
• Mediation
• Adjudication
• Negotiation

Question 8

276. What is the TCC?

Answer 8

• Technology and Construction Court
• Handles disputes about building, engineering and surveying
• Does not normally handle case less then £250k unless there is a good reason

Question 9

277. What is mediation?

Answer 9

Parties agree on an independent, third party neutral system 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.
* Encourages coming together and agreeing
* By mutual agreement (voluntary)
* The process can be initiated at any time by the parties (a dispute does not have to have crystalised)
* The mediator does not award a winning party
* The process is non-binding

Question 10

278. Can you explain what negotiation is?

Answer 10

The process whereby the parties work between them how to resolve issues that have arisen. The power to settle rests with the parties.
* The negotiation ends when both parties agree
* Suitable for simple matter, easily resolvable, compromise made
* Requires the co-operation of both parties

Question 11

279. What is conciliation?

Answer 11

A process similar to mediation used in the construction industry whereby a conciliator seeks to facilitate a settlement between the parties. The conciliator doesn’t not decide any issues of law or fact but conducts a process whereby each party states its position and then attempts to works towards a compromise.
* Independent party to aid agreement
* Conciliator prepares a “recommendation” which sets out the solution for the dispute and neither party dissents from that recommendation or initiates adjudication or arbitration then the recommendation becomes final and binding.

Question 12

281. What is an expert witness?

Answer 12

Is defined as a person whose experience or knowledge in a particular field is beyond what is expected of a layman. An expert witness makes their knowledge available to the courts or other bodies to help it understand the issue before it and reach a just and reasoned decision.

Question 13

282. What is expert determination?

Answer 13

• Is the process whereby the parties agree to refer their disagreement to an impartial expert third party and then be bound by their decision
• The parties can choose who the expert is
• More informal than arbitration or litigation
• Ideal for technical disputes
• Expert determination is generally simpler and cheaper than arbitration or litigation, can be use as a shortcut to a binding decision

Question 14

283. What are the advantages of expert determination?

Answer 14

• Confidential procedure which is less adversarial and helps parties maintain a working relationship
• Provides a cost and time efficient solution to help resolve disputes
• Procedures are controlled by the parties rather than the court or arbitration rules
• An expert can be appointed who is familiar with the specific technical issues