Conflict Avoidance, Management, and Dispute Resolution Procedures (L1)

Question 1

How can you avoid conflict in the first instance?

Answer 1

Continuous, effective communication between all parties
Put everything in writing for documented evidence
Clear tender and contract documents
Follow company procedures and policies
Follow RICS standards, guidance and professional statements

Question 2

If conflict occurs, how do you deal with it initially?

Answer 2

Raise the issue with all parties and try to resolve it through communication and negotiation.

Question 3

What would indicate the success of a final account negotiation?

Answer 3

All parties come away happy
Cost agreed within the client’s budget / EFC
Negotiation is solved in a timely manner

Question 4

In your opinion, what causes the most disputes?

Answer 4

Commercial matters
Unclear or conflicting specifications / drawings
Teams under pressure (poor or rushed decisions)
Insufficient detail given to contracts prior to execution
Unclear scope of service

Question 5

What can you do if a negotiation breaks down and the matter cannot be resolved?

Answer 5

Consider an ADR (Alternative Dispute Resolution).

Question 6

What is dispute resolution?

Answer 6

Dispute resolution is a term that refers to several processes that can be used to resolve a conflict, dispute or a claim.

Question 7

What does ADR stand for?

Answer 7

Alternative Dispute Resolution - processes which are alternatives to the traditional binding dispute resolution procedures of litigation and arbitration.

Question 8

Main forms of ADR?

Answer 8

Negotiation, Mediation, Adjudication

Question 9

What is the TCC?

Answer 9

Technology and Construction Court - Handles disputes about buildings, engineering and surveying, does not normally handle cases with a value of less than £250k unless there is a good reason.

Question 10

What is Mediation?

Answer 10

The parties agree on an independent, neutral third-party system to facilitate discussions between them, with the goal of reaching a settlement. The power to settle remains with the parties, but the process is led by the mediator.

Question 11

Can you explain what Negotiation is please?

Answer 11

The process whereby the parties work out between themselves how to resolve issues that have arisen. The power to settle the dispute rests with the parties. Requires cooperation for both parties.

Question 12

What is Conciliation?

Answer 12

A process similar to Mediation used in the construction industry whereby a conciliator seeks to facilitate a settlement between the parties. The conciliator prepares a ‘recommendation’ which sets our their solution to the dispute. If neither party dissents from that recommendation or initiates an adjudication or arbitration, then the recommendation becomes final and binding.

Question 13

Difference between Mediation and Conciliation

Answer 13

In mediation, the mediator acts as a facilitator who helps the parties reach an agreement. Conciliation allows the facilitator to play a more direct role into finding a solution for the dispute.

Question 14

What is an expert witness?

Answer 14

An expert witness is a defined person whose experience and knowledge in a particular field is beyond what is expected of a layman. An expert witness makes his or her knowledge available to the court or other bodies to reach a just and reasoned decision.

Question 15

What is expert determination?

Answer 15

The process whereby the parties agree to refer their disagreement to an impartial third party and will then be bound by his or her decision. The parties can choose who the appointed person is.
More informal than litigation or arbitration (cheaper too)
Ideal for technical disputes
Short cut to a binding decision.

Question 16

What is an adjudication?

Answer 16

Was developed to allow for construction contract disputes to be resolved more quickly and cost-effectively than arbitration or litigation.
Its objective is to provide a fast-working solution to an issue so that the parties can quickly resume or continue work under the contract.

Question 17

How does the adjudication process work in terms of timeframes?

Answer 17

Following crystallisation of a dispute, either party can serve notice of its intention to refer the dispute to adjudication
Within 7 days of the notice, the referring party must serve its Referral
Within that 7 day period, the the referring party must secure the appointment of an adjudicator.
Following the appointment, the adjudicator will set out a timetable, permitting the other party to respond to the Referral.
The adjudicator must make his decision within 28 days of the Referral.

Question 18

Can the 28 day period of an Adj be extended?

Answer 18

To 42 days by mutual agreement of both parties

Question 19

Is the adjudication process binding?

Answer 19

The Decision will be binding and enforceable in court

Question 20

Is there an appeal process with adjudication?

Answer 20

There is no appeal process, however the parties can take the same dispute to litigation.

Question 21

What if a building contract does not contain provisions for adjudication?

Answer 21

Adjudication became a legal right in relation to construction contracts in the UK when legislation known as the Construction Act (1996) came into force.

Question 22

Who pays for the adjudication?

Answer 22

Both parties are jointly liable, however the adjudicator usually decides who is to pay the fees.

Question 23

What is arbitration?

Answer 23

Essentially a lawsuit without court involvement
The parties agree to submit their dispute to arbitration rather than pursue a lawsuit in the court
Decision will be binding
ADV: Private, fast (compared to Lit), can be enforced
DISADV: Costly (could be uneconomical), limited appeal rights.

Question 24

What is litigation?

Answer 24

Involves one of the parties bringing a claim in the civil courts.
Courts have inherent jurisdiction to hear a dispute involving just about anything
Nature and complexity of the dispute determines which court will hear the dispute
ADV: Sanctions for non-compliance, defined rights of appeal
DISADV: Costly, slow, subject to appeal