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APC > Conflict Avoidance, Management and Dispute Resolution > Flashcards

Conflict Avoidance, Management and Dispute Resolution Flashcards

1
Q

What legislation does adjudication come from?

A

Housing Grants, Construction and Regeneration Act 1996

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2
Q

Can you explain the process of mediation? How long does it take?

A

One day, independent guide discussion to resolve dispute between parties, parties resolve disputes

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3
Q

How might a conflict be avoided? Name some steps that should be taken?

A

Clear documents, project directory, communication links confirmed, aware of roles, dispute resolution procedure determined at outset, regular programme / cost reviews, clarity, partnering

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4
Q

Why might clear contract documents prevent a dispute?

A

It would make it clear that a party had not fulfilled their obligations and therefore the party would not be able to dispute or state the requirements were not known

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5
Q

What is ADR? Name the different forms of ADR?

A

Forms of dispute resolution for disagreeing parties who cannot come to an agreement short of litigation.

Negotiation, mediation, conciliation, expert determination, dispute boards, adjudication, arbitration

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6
Q

How does mediation and conciliation differ?

A

Conciliation - an expert is appointed to resolve a dispute by convincing the parties to agree upon an proposal.

Mediation - A process of settling disputes by an independent third party who assists the parties to reach a common outcome.

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7
Q

What is adjudication? Why was it introduced?

A

Adjudication is the legal process by which an arbiter or judge reviews evidence and argumentation, including legal reasoning set forth by opposing parties or litigants, to come to a decision which determines rights and obligations between the parties involved.

It was introduced to provide a quicker and more cost effective dispute resolution framework than litigation or arbitration.

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8
Q

What are the timescales associated with adjudication? How long to appoint an adjudicator and how long does it take?

A

7 days to appoint an adjudicator
28 days for a decision to be reached
14 day extension if parties consent

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9
Q

What are the pros and cons of adjudication?

A

Final decision, majority accepted, quick, rarely lengthly legal submissions.

Not necessarily final as can be heard in court, no testing of evidence, not as quick and cost effective as softer forms.

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10
Q

What are the pros and cons of mediation?

A

Parties resolve, flexible outcome, confidential, not compulsory, quick.

Difficult if unwillingness to cooperate, may not resolve, parties may withhold information, not binding.

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11
Q

What is the RICS DRS?

A

provides a range of alternative dispute resolution services, e.g. adjudication services/ACRE mediation (analytical, commercial, restorative, expert)

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12
Q

What RICS guidance should be referred to in a dispute?

A

RICS Conflict Avoidance and Dispute Resolution in Construction Guidance Note

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13
Q

Why is preventing a conflict of interest important in avoiding a dispute?

A
  • If noticed later in a project it could lead to a dispute.
  • Important to notice early and gain informed consent or not act if appropriate
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14
Q

Is adjudication legally binding?

A

The outcome of adjudication is legally binding on the parties, unless and until the parties decide to sort of escalate that dispute in either court proceedings or arbitration

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15
Q

Why are the different types of conflict of interest. Give an example of how this relates to conflict avoidance?

A
  • Own interest conflict
  • Party conflict
  • Confidential information conflict

It relates because if a conflict of interest is identified early on it can prevent a dispute at a later date.

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16
Q

What are the different forms of dispute resolution?

A

Negotiation, mediation, councilliation, adjudication, arbitration, litigation, dispute boards, expert witness

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17
Q

Name some sensitive issues that can lead to disputes?

A
  • Programme delays
  • H&S issues
  • Quality issues
  • Costing of variations
  • Not communicating with adjoining owners
18
Q

Can you provide examples of RICS DRS services?

A
  • Mediation (e.g. ACRE)
  • Adjudication
  • Expert witness referral
19
Q

What is the difference between dispute resolution and alternative dispute resolution?

A

ADR is generally faster and less expensive than going to court. ADR gives parties in dispute the opportunity to work through disputed issues with the help of a neutral third party.

20
Q

How can early communication prevent a dispute?

A
  • It can resolve the issue quickly.
  • Both parties understand eachother’s needs in the dispute.
  • Early communication will help prevent the relationship deteriorating.
  • Communication may lead to both parties giving concessions to end the dispute.
21
Q

What are the pros and cons of arbitration?

A

Both parties to agree to arbitrator, quicker and more cost effective than litigation, private, agreeable outcome.

Lack of transparency, little testing of evidence, not as quick and cost effective as softer forms.

22
Q

What is the main RICS guidance for dispute resolution? What is included?

A

RICS Conflict Avoidance and Dispute Resolution in Construction Guidance Note - level 1 knowledge, level 2 doing, level 3 advising.

Covers conflict avoidance, dispute resolution, ADR, standard form contracts, dispute escalation, interim valuations and claims

23
Q

How does obtaining informed consent prevent a conflict?

A

being transparent at outset and preventing a dispute at a later date.

All parties are aware and then it is their decision if they want to proceed or not, rather than not inform them which could then cause a dispute.

24
Q

What are the three pillars of dispute resolution?

A

Negotiation
Mediation
Adjudication

25
Q

What are early warning systems and how can they prevent a dispute?

A

Contracting parties can adopt measures that provide early warning of emerging issues, such as reduced communication which could signal potential insolvency. Early warning signs help avoid dispute and can be initiated through regular reporting, independent reviews and open and transparent communications between contracting parties.

26
Q

What are the basic principles of risk management? How can it help avoid a dispute?

A
  • Risk Identification
  • Risk Analysis
  • Response Planning
  • Risk Mitigation
  • Risk Monitoring
27
Q

Identify some different partnering techniques? How can they help avoid a dispute?

A
  • Strategic Partnering facilitates the development of a long-term relationship amongst the project team: contractor, designer, consultant, clients, and subcontractors. Generally, large clients with a high volume of work will use strategic partnering when they require a fast turnaround.
  • Project partnering is formed around freestanding and non-binding partnering agreements or charters for single projects.
  • With partnering, the linear contractual chain is replaced by a desire to solve issues on a collaborative and equal footing. With this approach, all parties are involved with key decisions and can provide specialist input when required.
28
Q

What is a Dispute Resolution Board? What are the pros and cons of a DRB?

A

A DRB is where the contract will provide for three members, two technical and one legal, usually the chairman. This formulation allows for technical disputes to be fully understood and resolved without the need for external advice, and similarly disputes involving or including legal issues being capable of resolution without external advice. The idea is for the board to be able to deal with any dispute that arises.

The three-member DRB will visit the project regularly and deal with any difficulties that have arisen. The advantage to the parties is that the DRB gains an ongoing knowledge of the project as the members are exposed to the facts of any emerging disputes at a very early stage.

29
Q

What is a dispute resolution advisor?

A

In its simplest terms the DRA is a neutral who is contractually empowered to perform any number of functions. For example, the DRA may participate in “meet and confer” meetings to assist the parties in an early resolution of a dispute (“Real Time” mediation).

30
Q

What is the RICS guidance for expert witnesses?

A

RICS Surveyors Acting as Expert Witnesses 4th Ed 2023

31
Q

How do the parties to a dispute appoint an adjudicator if neither party can agree?

A

If agreement cannot be reached, the contract will normally state the Nominating Body to be used to appoint an adjudicator.

32
Q

Name the court that deals with construction disputes?

A

Technology and Construction Court

33
Q

What is CAP?

A

The RICS Conflict Avoidance Process is a government-endorsed procedure that can be written into contracts to help parties involved in construction or engineering projects to resolve disagreements out of court. It encourages parties to resolve problems at the time of the event, to nip them in the bud before they escalate to drawn-out, damaging disputes.

34
Q

If you cant resolve a dispute in a meeting what should you do?

A

Go away and reflect, discuss with line manager and return to discuss. If still cant agree then escalate.

35
Q

Where should you go to appoint an adjudicator? What bodies are there?

A

Normally stated in contract. Could be RIBA, RICS or otherwise.

36
Q

Name some negotiation techniques?

A
  • Competition (win-lose)
  • Collaboration (win-win)
  • Compromise (split the difference)
  • Accommodation (lose-win)
  • Avoidance (lose-lose)
37
Q

What is dispute resolution?

A

Actions to resolve contractual disagreements between parties.

38
Q

What is a redress scheme?

A

A scheme which allows consumers to escalate a complaint they have against the member of the scheme. It aims to settle the unresolved complaint.

39
Q

What would you consider to select a form of dispute resolution?

A
  • Cost in proportion to a claim
  • Timescales involved
  • Impact on reputation and relationships
40
Q

What enforces the requirement for a building contract to provide provisions for adjudication? What if a contract does not contain adjudication provisions?

A
  • Housing Grants, Construction and Regeneration Act 1996.
  • The Scheme for Construction Contracts will apply in its entirety.
41
Q

Provide some advantages for arbitration and some advantages for litigation?

A

Arbitration - Advantages are that it is a private process, parties have flexibility, arbitration awards generally easier to enforce
Litigation - Advantages are that parties do not pay for court or judge, process can deal with multi-party disputes, civil procedure rules aim for accessibility, speed and efficiency.

APC (24 decks)

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