Conflict avoidance, management and dispute resolution procedures Flashcards
How can disputes be avoided in construction contracts?
- Proactive Project Management
- Clear contract documentation
- Good Client Management
- Good Contractor Management
- Good Payment Practice
- Record Keeping
- Partnering and Alliancing
How does partnering avoid disputes?
Partnering is used to reduce adversarial approaches and promote collaborative project team working which benefits all. With proper buy in from all project team members, this approach should prevent disputes arising.
What are the 3 pillars of dispute resolution?
- Negotiation;
- Mediation (or third party intervention);
- Adjudication/ Arbitration/ Litigation.
What is Negotiation?
It is the process of working out an agreement by direct communication. It is voluntary and non-binding.
the essential feature of this process is that control of the outcome remains with the parties, unlike the other pillars which require third party intervention.
What is Mediation?
Private, informal process in which parties are assisted by one or more neutral third parties in their efforts towards settlement.
A neutral third party who aids the parties in dispute towards settlement. A further important factor is that the mediator does not decide the outcome; settlement lies ultimately with the parties.
What is the difference between “facilitative” vs. “evaluative” mediation?
Facilitative mediation - the mediator is trying to reopen
communication between the parties and explore the options for settlement. The mediator does not openly express his or her opinions on the issues.
Evaluative mediation - the mediator/conciliator makes a recommendation as to the outcome.
What is Adjudication?
is a 28-day, short-form dispute resolution procedure that aims to resolve the disputes without the need to undertake long and costly court procedures and therefore assist cash flow.
The use of an adjudicator is found in a variety of standard forms of contract used in the construction industry.
What is Arbitration?
Arbitration is a process, subject to statutory controls, whereby formal disputes are determined by a private tribunal of the parties’ choosing.
Arbitration is a private form of dispute resolution that is agreed by the parties in the contract. An arbitrator, or panel of arbitrators, is appointed by the parties to make a binding decision from which there are very limited grounds of challenge.
What is Litigation?
Litigation is the process of taking legal action, i.e. in the construction industry, it will typically be taken to the Construction and Technology Court. The Judge and court facilities are provided at public expense
What are the Civil Procedure Rules 1998?
An improvement to the legal system, making it quicker, cheaper and easier to understand through the introduction of Alternative Dispute Resolution (ADR).
