Conflict Avoidance, Management and Dispute Resolution Procedures

Question 1

What are the forms of dispute resolution available under the JCT suite of contracts?

Answer 1

• Negotiation - problem solving by the parties themselves.
• Mediation/Concilliation - 3rd party intervention but no binding decision imposed.
• 3rd Party Adjudication. Right to this created by the Construction Act 1996. Quick decision given within 28 days. Binding unless subsequently overturned by arbitration/litigation.
• Arbitration. If contract allows. More formal form of dispute resolution. 3rd Party Arbitrator can order facts/details of costs. Decision binding.
• Litigation/Court procedings. Expensive.

Question 2

What is Independent Expert Determination?

Answer 2

• Private process involving an independent technical expert.
• Makes binding decision on technical matters.
• No recourse and decision is final.
• Similar to arbitration but the independent expert does not need to refer back to the parties before making a decision - makes process quicker.

Question 3

Define ADR

Answer 3

All methods of dispute resolution taking place outside of the courts.

Question 4

List for me some ADR procedures

Answer 4

• Arbitration
• Independent Determination
• Mediation
• Early neutral evaluaion
• Adjudication
• Dispute Resolution Boards

Question 5

What is a Dispute Resolution Board?

Answer 5

• 1-3 people appointed at start of large construction project. Each party choose one board member and then the 2 choose a third.
• They consider project issues and recomend resolution of disputes.
• Non-binding.

Question 6

What is Adjudication?

Answer 6

Right to this created by the Construction Act 1996. Quick decision given within 28 days. Binding unless subsequently overturned by arbitration/litigation.

Question 7

What is Arbitration?

Answer 7

• Both sides to a dispute agree to let a 3rd party (the arbitrator) decide.
• Arbitrator may be a lawyer.
• Make decision according to law.
• Decision is binding and can be enforced through courts.

Question 8

How can conflict in construction be avoided?

Answer 8

• Good management - proactive, planned, early raising of issues.
• Clear contract docs - no ambiguities
• Partnering and alliancing - cooperation and team-working - NEC suite of contracts.
• Good project management
• Good client management
• Good contractor management
• Good payment practice
• Record keeping
• Regular reporting

Question 9

What is risk management?

Answer 9

• An example would be the use of a risk register.
• Each risk quntified in terms of probablility and potential impact.
• Each risk given a mitigation strategy and a person/party responsible for it.