Conflict Avoidance, Management and Dispute Resolution Procedures Flashcards
What is adjudication?
A 28 day dispute resolution procedure introduced by the construction act.
What are the time frames relating to adjudication?
An adjudicator is appointed within 7 days of a dispute being referred, the adjudicator then has 28 days to make a decision unless the parties agree to extend this period
Explain the process of adjudication
The referrer submits their claim to an agreed adjudicator. The adjudicator is appointed within 7 days. The adjudicator then has 28 days to to make a decision and make their request for information from the referred party. The adjudicator can extend the period of 28days by up to 14 days, with the consent of the referrer and then comes to their decision. This decision is implemented immediately and cannot be appealed until PC.
What legislation should be referred to in relation to adjudication?
Construction Act 1996 and Construction Scheme
Is adjudication binding?
Yes until or unless the decision is overturned by arbitration or litigation
If an adjudicator cannot be agreed on by the parties, what options are available?
If the parties cannot agree they could use ADR. Alternatively they could use the selected procedure in the contract i.e. arbitration by the agreed body appointed as per the contract.
How do S/C use adjudication to their advantage?
They can assemble their claim prior to referring the dispute to adjudication, thus giving the other party less time to assemble their claim
If an adjudicator makes an award against your client and you believe it is wrong what do you advise?
To refer the matter to either arbitration or litigation
What types of ADR are there?
Concilliation, mediation, negotiation, mini trial.
What is mediation?
The role of the mediator is not to make a judgement of the dispute, but to facilitate a settlement between the parties. He meets with the parties to agree the format and procedure and the sessions usually begin jointly with each of the parties presenting their case informally, followed by private sessions. The mediator’s role is to get them to move to a common position.
What are the benefits of mediation?
Quick, cheap, private and does not involve the legal process.
What is the difference between adjudication and litigation?
Litigation is public and legally binding. Adjudication is private, only binding until PC.
What are the differences between adjudication and arbitration?
Adjudication is very similar however the verdict is only binding until PC and is given within 28 days of referral. Arbitration has no timescale, but is a binding decision under the Arbitration Act 1996 and the decision can only be appealed on a point of law. The arbitrator must give reasons for reaching their decision.
Is arbitration binding?
Yes, under the arbitration act 1996.
How do courts look on parties who go straight to arbitration?
Unfavourably, the courts view this parties who do this as not willing to reach amicable agreement.
Can you distinguish in a claim the difference between disruption and prolongation what might be the reasons for the change in trend away from nomination
Disruption is the affecting the regular progress of the works. Prolongation is the prolong of the completion of the works. The trend away from nomination stems from the employer being held responsible for nominated S/Cs who cause delay to the regular progress of the works.
What approaches should you take to manage the risk in construction projects
In my experience I would not nominate a S/C. Also I would ensure there is a single point of respnsibility on te contract as with Trad and D&B.
What would you do if you had a dispute with the contractor over a variation
I would seek to reconcile the difference firstly. If this did not work then I would speak with my Partner to seek any alternatives. If these negotiations failed, then I would seek ADR.
How can you help resolve a conflict between parties
Move them towards a common ground which ensure both parties are satisified (or at least in part).
If you and the contractors QS could not agree on something how would you resolve it
I would seek to reconcile the difference firstly. If this did not work then I would speak with my Partner to seek any alternatives. If these negotiations failed, then I would seek ADR.
Do you know the difference between conciliation and mediation
Concilliation is similar to mediation howeve the Concilliator will actively participate in the discussions between the parties, offering views on the cases put forward. Should the parties fail to agree, it is common for the concilliator to recommend how the dispute be settled.
What is reconciliation
Reconcilliation is the process of reach agreement over the difference between the two parties.
What are the adjudication provisions in the housing and regeneration act
Right to refer disputes to adjudication. The contract shall:
(a) enable the party to give notice at any time of his intention to refer a dispute to adjudication;
(b) provide a timetable with the object of securing the appointment of the adjudicator and referral of the dispute to him within 7 days of such notice;
(c) require the adjudicator to reach a decision within 28 days of referral of such longer perios as is agreed by the parties after the dispute was referred;
(d) allow the adjudicator to extend the period of 28 days by upto 14days, with the consent of the party by whom the dispute was referred;
(e) impose a duty on the adjudicator to act impartially and
(f) enable the adjudicator to take the intiative in ascertaining the facts and the law.
What are the risks of a client ‘s own form of contract
It is untested in the Courts of law and has no legal precedent. There may not be contractors willing to tender the works as they do not understand the contract. It may not have been legally drafted by a qualified person.
What is the difference between ADR and adjudication
ADR is non-binding on the parties
What is subrogration
Subrogation is a general principle of law. It allows a loss insurer who pays the Client in respect of a loss which has been caused by someone else’s default (such as a breach of contract or a tort), the insurer is then entitled to take over any legal rights which the insured person could have exercised against the party responsible. In such a way the insurer will seek, by suing in the Client’s name, to recover from that 3rd party the amount which has been paid out to the Client.
How long does the adjudicator have to make a decision according to the construction act
28days but this can be extended upto 14 days if the referrer agrees.
There have been a lot of claims in the construction industry recently – how can we reduce confrontation in the industry
Partnering forms of contract help to ensure that the parties involved work together to achieve the project goals and if savings a made they can then split these equally or however the wish.
What is the difference between arbitration and litigation
Arbitration is carried out in private by a qualified arbitrator. Litigation is carried out in a court of law in public.
