Conflict Avoidance, Management and Dispute Resolution Procedures Flashcards
JCT D&B - approach to conflict
Negotiate first.
Mediation.
Adjudication.
Arbitration optional.
NEC - conflict approach
Dispute resolution W1; HGCRA not apply. Timescales stated.
W2; HGCRA applies. Both can refer to Tribunal 4 weeks after.
Dispute Resolution and ADR
Negotiation (informal).
Mediation (formal - not binding).
Adjudication (formal – binding).
Arbitration (legally binding).
Litigation (legal judge binding).
ADR – All previous are examples except LITIGATION.
What are the components of Conflict Avoidance (project context)
Proactive management,
Clear documentation,
Positive contractor relationship,
Clear payment terms,
meeting minutes (confirm issues, actions & agreements)
cost reports,
change processes.
Components of Partnering to minimise conflict
Project wide co-operation.
Open communication.
Multi-party Contract incorporating principles.
JCT Constructing Excellence; Risk registers, Risk allocation, KPI’s
Negotiation approach (simplify)
Clear outcomes –
listen –
see their point of view –
challenge –
research –
walk away –
focus on their pressure (time/cost)
Mediation
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
Conciliation
Similar to mediation but makes a RECOMMENDATION.
NOT usually binding.
Adjudication
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
Arbitration
Must be option in contract. Private hearing (not in public eye). 28 days to appoint single (14 for 2+).
Short hearing
Inspecting work, materials etc.
Written statements.
1-day hearing.
Can agree to extend.
Award in 1 month
Documents only
No need for hearing.
Submit statement and submit formal reply to each other.
Further questioning or hearing may be requested.
1-month decision.
Full Procedure
Comprehensive process used only when previous deemed not sufficient to investigate issue.
Who bares cost of legal fees in arbitration?
Losing party bares costs and Arbitrator can apportion settlement at their own discretion
Pre-Action Protocol
Encourage ADR
Ensure both parties have all info
Allow settlement offers