Conflict Avoidance, management, and dispute resolution procedures

Question 1

How can you avoid conflict in the first instance?

Answer 1

• Clearly state in all documents what is required of all parties
• Ensure continuous effective communication between all parties
• Put everything in writing to ensure there is always documented evidence should a dispute arise (meeting minutes)
• Follow company procedures and policy (including quality assurance processes)
• Follow RICS standards, professional statements, and guidance.

Question 2

If conflict occurs, how do you deal with it intially?

Answer 2

• Raise the issue with all parties and try to resolve through communication and negotiation
• A face-to-face meeting is usually the best way to find resolution

Question 3

What could indicate the success of a final account negotiation?

Answer 3

• All parties come away happy
• Costs agreed and within the clients budget
• The negotiation is resolved in a timely manner

Question 4

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

Answer 4

• Commercial aspects
• Unclear or conflicting specification/drawings
• Teams under pressure (poor or rushed decisions are made).
• Insufficient detail/ consideration given to building contracts prior to signing
• Unclear scope of service

Question 5

What can you do if a negotiation breaks down and the matter cannot be resolved?

Answer 5

Consider and ADR to resolve the issue

Question 6

What is dispute resolution?

Answer 6

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

Question 7

What does ADR stand for?

Answer 7

ADR stands for Alternative Dispute Resolution. This predominantly means dispute resolution processes that are not traditional (i.e. not Litigation are arbitration)

Question 8

What are the main forms of ADR

Answer 8

Negotiation
Mediation
Adjudication

Question 9

What is the TCC?

Answer 9

Technology and Construction Court (TCC).
It handles disputes about buildings, engineering and surveying.
The TCC does not normally handle cases with a value less than £250,000 unless there is a good reason

Question 10

Please detail what negotiation is?

Answer 10

The process whereby the parties work out between them how to resolve issues that have arisen. Power to settle the dispute rests with the parties.
- The negotiation ends when both parties come to an agreement
- Suitable for simple matters, easily resolvable, compromises made
- Requires co-operation of both parties

Question 11

What is Mediation?

Answer 11

The 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.

• Mediation encourages coming together and agreeing
• By mutual agreement (voluntarily)
• The process can be initiated at any time between the parties
• The mediator does not award a winning party
• The process is non-binding

Question 12

What is Conciliation?

Answer 12

A process similar to mediation used in the construction industry whereby a conciliator seeks to facilitate a settlement between the parties. The conciliator does not decide any issues of law or fact but conducts a process whereby each party states its position and then attempts to work towards comprise
- Independent party to aid an agreement
- Conciliator prepares a recommendation which sets out their solution to the dispute, if neither party dissents from that recommendation or initiates adjudication or arbitration, then the recommendation becomes final and bonding

Question 13

What is the difference between mediation and conciliation?

Answer 13

• In mediation, the mediator acts as a facilitator who helps the parties in agreeing.
• In conciliation, allows for the conciliator to play more of a direct role in the solution for the dispute. The conciliator can make suggestions towards certain proposals and give advice for certain solutions

Question 14

What is an Expert Witness?

Answer 14

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

Question 15

What is expert determination?

Answer 15

The process whereby the parties agree to refer their disagreement to an impartial expert third party and will then be bound by their decision.
The parties can choose who the expert is
More informal that arbitration or litigation
Ideal for technical disputes

Question 16

What is adjudication?

Answer 16

Adjudication was developed to allow for construction contract disputes to be resolved more quickly and cost-effectively than resolution through arbitration or litigation
It objective is to provide a fast-working solution to an issue so that parties can quickly resume or continue work under the contract.

Question 17

Can you explain how the adjudication process works in terms of timeframes?

Answer 17

1. When a dispute arises, either party can serve notice on the other party of its intention to refer the dispute to adjudication
2. Within 7 days of notice, the reffering party must serve its Referral. If it is not served in time it will likely be void.
3. the referral must contain a detailed explanation of the reffering parties claim in respect of the dispute identified within the notice, along with any supporting documentation
4. Within the 7-day period, the referring party must ecure an adjudicator.
5. The adudicator will then set out a timetable, setting out when the other party should issue a response by.
6. Adjudicator must make his decision within 28days of the Referral.

Question 18

In Adjudication, can the decision period of 28days be extended?

Answer 18

The time can be extended to 42 days by mutual agreement of both parties

Question 19

Is the adjudication process binding?

Answer 19

The adjudicators decision will be binding on the parties (and enforcable in court) unless the adjudicator acted outside their jurisdiction or was biased.

Question 20

Is there an appeal process for adjudication?

Answer 20

No appeal process, however the parties can take the same dispute to litigation

Question 21

Who pays for the adjudication?

Answer 21

Both paties are jointly liable for the adjudicators fees.
The adjudicator can usually decide who is to pay the fees and reasonable expenses.

Question 22

What is arbitration?

Answer 22

Arbitration is essentially a lawsuit but without court involvement
The parties agree to submit their dispute to arbitration rather than pursue a lawsuit in court
The parties agreement gives the arbitrator the power to issue a decision as to the parties rights and obligations and such decision will be legally binding on all parties

Question 23

What are the advantages of arbitration?

Answer 23

The process is private - there is no public record of any proceedings, although not necessarily confiedntial
Speed
Arbitrators decision can be enforced
Both parties can select arbitrator

Question 24

What are the disadvantages of arbitration?

Answer 24

Parties bear the costs
Limited appeal rights

Question 25

What is litigation?

Answer 25

Litigation involves one of the parties commencing a claim in the civil courts
The courts have inherent jurisdiction to hear a dispute in respect of just about anything
The nature, complexity and value of the dispute will determine which court will hear a particular dispute.

Question 26

What are the advantages of litigation?

Answer 26

Judges can compel the parties to comply with timeframes and have powers of santions for non-compliance
Judges can make orders to provide interim relief to protect a party’s position pending final judgement
There are defined rights of appeal in cases where errors of fact or law are made

Question 27

what are disadvantages of litigation?

Answer 27

• Potentially greater costs if the dispute is not well managed
• potentially long time til judgement
• conducted in public
• judgement will be subject to appeal