Conflict Avoidance, Management and Dispute Resolution Procedures

Question 1

JCT D&B - approach to conflict

Answer 1

Negotiate first.
Mediation.
Adjudication.
Arbitration optional.

Question 2

NEC - conflict approach

Answer 2

Dispute resolution W1; HGCRA not apply. Timescales stated.
W2; HGCRA applies. Both can refer to Tribunal 4 weeks after.

Question 3

Dispute Resolution and ADR

Answer 3

Negotiation (informal).
Mediation (formal - not binding).
Adjudication (formal – binding).
Arbitration (legally binding).
Litigation (legal judge binding).
ADR – All previous are examples except LITIGATION.

Question 4

What are the components of Conflict Avoidance (project context)

Answer 4

Proactive management,
Clear documentation,
Positive contractor relationship,
Clear payment terms,
meeting minutes (confirm issues, actions & agreements)
cost reports,
change processes.

Question 5

Components of Partnering to minimise conflict

Answer 5

Project wide co-operation.
Open communication.
Multi-party Contract incorporating principles.
JCT Constructing Excellence; Risk registers, Risk allocation, KPI’s

Question 6

Negotiation approach (simplify)

Answer 6

Clear outcomes –
listen –
see their point of view –
challenge –
research –
walk away –
focus on their pressure (time/cost)

Question 7

Mediation

Answer 7

Independent perspective to facilitate settlement.
Does not give opinion/ recommendation.
Directs parties to agree on the issue on the basis of what a likely award might be

Question 8

Conciliation

Answer 8

Similar to mediation but makes a RECOMMENDATION.
NOT usually binding.

Question 9

Adjudication

Answer 9

Stat requirement under HGCRA or Scheme for Construction Contracts. Invoked at any time.
5 days’ notice, appoint Adjudicator.
2 days to confirm availability.
7 days to submit evidence.
Adjudicator decision in 28 days (can be extended with party permission).
Binding until further escalated to Arbitration or Litigation.
Introduced under ‘Housing Grants, Construction & Regeneration Act 1996

Question 10

Arbitration

Answer 10

Must be option in contract. Private hearing (not in public eye). 28 days to appoint single (14 for 2+).

Question 11

Short hearing

Answer 11

Inspecting work, materials etc.
Written statements.
1-day hearing.
Can agree to extend.
Award in 1 month

Question 12

Documents only

Answer 12

No need for hearing.
Submit statement and submit formal reply to each other.
Further questioning or hearing may be requested.
1-month decision.

Question 13

Full Procedure

Answer 13

Comprehensive process used only when previous deemed not sufficient to investigate issue.

Question 14

Who bares cost of legal fees in arbitration?

Answer 14

Losing party bares costs and Arbitrator can apportion settlement at their own discretion

Question 15

Pre-Action Protocol

Answer 15

Encourage ADR
Ensure both parties have all info
Allow settlement offers

Question 16

Litigation

Answer 16

Formal process undertaken through public process.
Technology and Construction court.
Public Eye.
Expensive.
Time consuming.
Binding subject to appeal.

Question 17

Expert Witness

Answer 17

Provide opinion based on experience, knowledge and expertise.
Independent, impartial and unbiased

Question 18

Independent Expert Determination

Answer 18

Parties agree to third party to make decision.
Typically used to determine the value of a Final Account or significant variation/s.
Final and Binding.

Question 19

Scott schedules

Answer 19

Table setting out a claim;
Description
Claimant overview & amount
Defendant overview & amount
Arbitrator conclusion and award