Conflict Avoidance, Management and Dispute Resolution

Question 1

What is conflict avoidance?

Answer 1

Strategies to avoid a deterioration of a relationship, delays, additional costs, breach of contract, and claims for damages. Requires clear documentation.

Question 2

What are ways to avoid conflict?

Answer 2

• effective management
• ensure clear contract documents
• Close co-operation
• Client management
• Assessment of progress
• Design team management
• Maintaining records
• Stakeholder consultation
• clear terms of engagement
• good payment practices

Question 3

What are some common causes of disputes?

Answer 3

• contractural issues
• behaviour or performance
• delays
• design
• quality or workmanship
• variations
  *

Question 4

What is dispute resolution?

Answer 4

• a process to resolve contractual disagreements between parties
  1. Negtiation
  2. Mediation or conciliation
  3. Adjudication (arbitration or litigation)

Question 5

What is the JCT requirement regarding ADR?

Answer 5

It requires each party to give serious consideration to a request by one party to use mediation and it is encouraged by the courts

Question 6

What is adjudication?

Answer 6

Ajudication - carried out by an independent third party and designed to produce a decision that is binding unless the dispute is subsequently resolved in arbitration or litigation, or settled by agreement

Question 7

Who is the adjudicator?

Answer 7

the adjudicator may either be named in the contract or nominated by the nominating body identified in the contract

Question 8

When is Arbitration / litigation necessary?

Answer 8

If the parties are unsatisfied with the adjudication, they may refer the dispute to either arbitration or litigation depending on what is agreed in the contract.

Question 9

What is arbitration?

Answer 9

Arbitration is a private, contractual form of dispute resolution. It provides for the determination of disputes by a third party arbitrator or arbitration panel, selected by the parties to the dispute. Disputes are resolved on the basis of material facts, documents and relevant principles of law. Both parties must agree to enter into arbitration. Arbitrators have specialist knowledge but can be overruled by Court of Appeal on point of law.

Question 10

What is litigation?

Answer 10

Litigation is the process of engaging in or contesting legal action in court as a means of resolving a dispute. The court is able to enforce or determine one party’s rights or obligations.

Question 11

What is an expert witness?

Answer 11

a person whose level of specialized knowledge or skill in a particular field qualifies them to present their opinion about the facts of a case during legal proceedings.

Question 12

What is conciliation?

Answer 12

• similar to mediation and relies on an independent third-party to aid agreement
• the conciliator has no authority to seek evidence or call witnesses
• conciliators cannot make binding decisions
• their role is to act as a messenger and encourage diplomacy

Question 13

What is property litigation?

Answer 13

Property litigation involves resolving disputes between property owners and their tenants, but can also cover a wide range of matters involving the ownership of residential, commercial, industrial and agricultural property. Under the umbrella of property litigation practices, you will find any and all legal aspects related to the buying, selling, leasing and ownership of property.

Question 14

What is the black book?

Answer 14

The ‘Black Book’ is a collection of technical practice documents which covers all processes throughout the construction project life cycle. The documents are essential development tools for junior professionals working through their APC and useful guides to best practice for more experienced professionals.

Question 15

What is mediation?

Answer 15

Mediation is a “private, informal process in which parties are assisted by one or more neutral third parties in their efforts towards settlement”. A mediator encourages coming together to reach an agreement but has no decision making authority

Question 16

What is negotiation?

Answer 16

Negotiation is a “process of working out an agreement by direct communication. It is voluntary and non-binding.”

Question 17

What are the three pillars of dispute resolution

Answer 17

1. negotiation
2. mediation/conciliation
3. adjudication (arbitration/litigation)

Question 18

What are the RICS primary duties of an expert witness?

Answer 18

• must be, and must be seen to be, your independent and unbiased product, and fall within your expertise, experience and knowledge
• must state the main facts and assumptions it is based upon, and not omit material facts that might be relevant to your conclusions; and
• must be impartial and uninfluenced by those instructing or paying you to give the evidence.

Question 19

What is an advocate?

Answer 19

A surveyor acting as advocate (surveyor-advocate) is appointed by a party to present the case for the client using argument, showing the tribunal why the client’s case should be preferred.

Question 20

What are Scott schedules?

Answer 20

A Scott schedule is essentially a table with inputs from both the claimant and respondent to settle building disputes. Typically the claimant will set out their argument first, then the schedule is passed to the respondent to set out their response. This requires a degree of collaboration between the parties. In the event that the dispute reaches the courts, the final column in the schedule is provided for the judge to give their decision against each item.

Question 21

What is the RICS Dispute Resolution Service (DRS)?

Answer 21

RICS Dispute Resolution Service (DRS) is the world’s oldest and largest provider of alternative dispute resolution (ADR) services in the land, property and construction industries. They offer a range of world class dispute resolution and avoidance services, and inspire confidence in parties through complete impartiality and the quality of dispute resolvers.

Question 22

What are more formal methods of dispute resolution?

Answer 22

1. arbitration
2. litigation
3. adjudication

Question 23

What considerations would be given to selecting a form of dispute resolution?

Answer 23

1. cost
2. timescales
3. impact on business relationships and reputation

Question 24

What indicates successful negotiation on a final account?

Answer 24

Both parties would be satisfied with the outcome and feel that a fair and reasonable compromise was reached

Question 25

What enforces the requirements for a building contract to contain provisions for adjudication?

Answer 25

The housing grants, construction and regeneration act 1996

Question 26

Which contract does adjudication apply to?

Answer 26

It applies to all construction contracts entered into after the act commenced within England Scotland and Wales

Question 27

What is a building contract does not contain provision for adjudication?

Answer 27

All parties have the statutory rights to adjudication assuming that the contract qualifies under the construction act. Alternatively, the scheme for construction contract would apply and its entirety.

Question 28

What is a conflict of interest?

Answer 28

A situation in which a person is in a position to have personal benefits from actions or decisions made in their official capacity

Question 29

What are RICS rules relating to conflict of interest?

Answer 29

An RICS member or regulated firm must not advise or represent a client where doing so
would involve a Conflict of Interest or a significant risk of a Conflict of Interest; other
than where all of those who are or may be affected have provided their prior Informed
Consent. Informed Consent may be sought only where the RICS member or regulated firm is satisfied that proceeding despite a Conflict of Interest is in the interests of all of those who are or may be affected and is not prohibited by law, and that the conflict will not prevent the member or regulated firm from providing competent and diligent advice to those that may be affected.

Question 30

What is partnering or alliancing?

Answer 30

Partnering (sometimes referred to as alliancing, for example, in the rail sector) is a broad term used to describe a collaborative management approach that encourages openness and trust between parties to a contract.

Question 31

How can good client management reduce conflict?

Answer 31

Good communication is key to avoiding disputes

Question 32

Give examples of good payment practices

Answer 32

Paying someone on time, the correct amount, and in accordance with the contract terms

Question 33

How do reporting and proactivity reduce conflict?

Answer 33

It promotes clarity and helps to solve a problem before it occurs

Question 34

What is ADR?

Answer 34

Alternative dispute resolution ( ADR ) refers to informal ways of resolving disputes between consumers and traders that don’t involve going to court. Cheaper than court action.

Question 35

Tell me about a conflict of interest check you have carried out.

Answer 35

When receiving an instruction from a client I check to make sure that there is no relationship with an existing client or a family member

Question 36

What would you do if you identified a perceived/actual conflict of interest?

Answer 36

I would advise the client and inform them that I would need to seek approval from the parties that may be affected and check it does not conflict with law

Question 37

What is the technology and construction court and what is it well?

Answer 37

It deals with disputes about buildings, engineering and surveying. Cases that we hear include: claims about services provided by engineers, architects, surveyors and other professionals in this sector. claims about local authority duties relating to land and buildings.

Question 38

What is independent expert determination?

Answer 38

An independent expert appointed by both parties (or by the president of the RICS if RICS DRS in some cases). Parties are bound by the decision.