Conflict avoidance, management and dispute resolution procedures

Question 1

How do you approach conflict avoidance and dispute resolution in construction?

Answer 1

I follow the RICS Guidance Note, emphasizing clarity in contract documentation, efficient record-keeping, audit trails, effective management, and regular reporting.

Question 2

What is the RICS Guidance Note on Conflict Avoidance and Dispute Resolution in Construction

Question 3

If there is something that you arent sure about and want to make sure you comply with RICS what should you do?

Answer 3

For the most accurate and up-to-date information, I recommend checking the official RICS website or contacting RICS directly to inquire about any recent publications or guidance notes on conflict avoidance and dispute resolution in construction.

Question 4

What do i personally do for conflict avoidance and dispute resolution ?

Answer 4

by maintaining clarity in contract documentation, efficient record-keeping, audit trails, effective management, and regular reporting.

Question 5

What is the significance of conflict prevention ?

Answer 5

Conflict prevention is crucial for fostering positive stakeholder relationships, and I achieve this through transparent communication and ensuring parties understand their roles and responsibilities throughout a project.

Question 6

What are the three primary dispute resolution processes you are acquainted with?

Answer 6

The three pillars of dispute resolution processes I am acquainted with are negotiation, mediation or conciliation, and adjudication.

Question 7

What is negotiation in dispute resolution?

Answer 7

Negotiation in dispute resolution is a process where parties involved in a conflict engage in discussions and exchanges to reach a mutual agreement or settlement without the need for formal intervention or third-party decision-making.

Question 8

What is Mediation in dispute resolution?

Answer 8

Mediation in dispute resolution is a facilitated and structured process where an impartial third party, known as the mediator, helps conflicting parties communicate, identify issues, and work towards a mutually acceptable resolution.

Question 9

What is adjudication in dispute resolution?

Answer 9

Adjudication in dispute resolution is a formal, legally binding process where an independent third party, known as the adjudicator, makes a decision on a dispute between parties, typically within a specific timeframe, based on the information presented to them.

Question 10

Name some different forms of Alternative Dispute Resolution?

Answer 10

• Mediation.
• Conciliation.
• Negotiation.

Question 11

Name some formal methods of dispute resolution?

Answer 11

• Arbitration.
• Litigation.
• Adjudication.

Question 12

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

Answer 12

• The cost of dispute resolution in proportion to the claim being sought.
• The timescales involved.
• The impact on business relationships and reputation.

Question 13

What is Conciliation?

Answer 13

• This dispute resolution process is similar to mediation and relies on an independent third party to aid reaching an agreement.

Question 14

Tell me more about Conciliators

Answer 14

• The conciliator has no authority to seek evidence or call witnesses.
• Conciliators are not able to make binding decisions.
• The conciliators’ role is to act primarily as the messenger and to encourage diplomacy.

Question 15

What is Mediation?

Answer 15

This is an alternative form of dispute resolution and relies on bringing in an impartial third party to mediate and guide a decision.

Question 16

What does median encourage ?

Answer 16

Mediation encourages the coming together of parties and reaching an agreement.

Question 17

Tell me more about the mediators role?

Answer 17

• The mediator tries to encourage a coming together of parties in order to facilitate a decision as opposed to acting only as a messenger which is the key differentiator between mediation and conciliation.

Question 18

What is dispute resolution?

Answer 18

• Actions and processes taken to resolve contractual disagreements between parties.

Question 19

What is negotiation?

Answer 19

• Negotiation is where the parties reach an agreement through an informal private or facilitated discussion.
• Both parties will agree to settle the dispute either at a high level or in detail and agree to be bound by this settlement.

Question 20

What could indicate the success of a negotiation on a final account?

Answer 20

• Both parties are satisfied with the outcome and feel that a fair and reasonable compromise was reached.
• A partnering approach is adopted with both parties feeling as though their long-term relationships and reputations have been maintained.

Question 20

What is your most successful negotiation?

Answer 20

o Explain how you prepared for example did you hold a meeting with the client or your team internally before the main negotiation.
o Explain the non-negotiable items and items that you conceded on and how these were decided.
o Talk the assessors through the end outcome and how did you ensure this was positive for not just the client but the project and wider team for example adoption of a partnering, long term
approach.

Question 21

What is adjudication?

Answer 21

• Adjudication is a statutory form of dispute resolution procedure available in the United Kingdom.
• Adjudication relies on an independent third party who considers the claims of both parties.
• A binding decision is made by the adjudicator which can be appealed either through litigation or
  arbitration.

Question 22

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

Answer 22

• The Housing grants, Construction and Regeneration Act 1996 (Construction Act).

Question 23

Which contracts does adjudication apply to?

Answer 23

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

Question 24

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

Answer 24

• Parties still have the statutory right to adjudication assuming the contract qualifies under the construction act.

Question 25

Please explain your understanding of the arbitration process?

Answer 25

• Arbitration is a procedure for the resolution of disputes which is under the control of the parties.
• Certain conditions must be met for example a genuine dispute or difference between the parties must
  have occurred with an award being capable of enforcement.
• A binding agreement must be reached to escalate the matter to arbitration.

Question 26

Can you explain in detail the difference between arbitration and
litigation procedures?

Answer 26

Arbitration:-
o Arbitration is governed by the Arbitration Act 1996.
o In order to arbitrate there must be an agreement to enter into arbitration by both parties.
o It is a private process.

Litigation:-
o Litigation differs in that proceedings are conducted in court.
o It is a public process that follows civil procedure rules.
o Despite having high costs the process can deal with multi-party disputes and civil procedure rules which aim for accessibility, speed and efficiency.

Question 27

How can you avoid conflict in the first instance ?

Answer 27

⁃ clearly state in all tender / contract documents exactly what is required of all parties
⁃ Ensure continuous effective communication between all parties
⁃ But everything in writing to ensure there is always a documented evidence
⁃ Follow company prosecutes and policy
⁃ Follow RICS standards, professional statements and guidance

Question 28

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

Answer 28

Raise the issue with all parties and try to resolve through communication and negotiation
A face to face meeting is usually the best way to find resolution

Question 29

What could initiate the success of a final account negotiation?

Answer 29

⁃ all parties come away happy
⁃ Costs agreed and within the clients budget
⁃ The negotiation is resolved in a timely manner

Question 30

In my option what is the cause of most disputes?

Answer 30

⁃ Commercial aspects
⁃ Unclear or conflicting spec / drawings
⁃ Teams under pressure
⁃ Unclear scope of service

Question 31

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

Answer 31

Consider an ADR ( alternative dispute resolution) to resolve

Question 32

What is a dispute resolution?

Answer 32

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

Question 33

What does ADR stand for ?

Answer 33

Alternative Dispute Resolution

Question 34

What does ADR do ?

Answer 34

It refers to the processes which are alternatives to the traditional binding dispute resolution procedures of litigation and arbitration.

Question 35

What are the main forms of ADR?

Answer 35

Negotiation
Mediation
Adjudication

Question 36

What does TCC stand for ?

Answer 36

Technology and Construction Court

Question 36

What the TCC handle ?

Answer 36

Disputes about buildings, engineering and surveying

Question 37

What is mediation ?

Answer 37

The parties agree on an independent, third party neutral system to facilitate discussions between them with the goal of reaching a settlement

Question 38

What value of projects below does the TCC not deal with ?

Answer 38

Less than £250k, unless there is good reason.

Question 39

Who does the power belong to in mediation ?

Answer 39

Remains to the parties but the process is led by the mediator.

Question 40

What is negotiation?

Answer 40

The process whereby the parties work out between them how to resolve issues that have arisen

Question 41

Who does the power belong to in negotiation?

Answer 41

Power to settle the dispute rests with the parties

Question 42

What is conciliation?

Answer 42

Similar to mediation used in the construction industry whereby a conciliator seeks to facilitate a settlement between the parities. The conciliator does not devise any issues of law or fact

Question 43

What does the conciliator prepare ?

Answer 43

A recommendation which sets out their solution to the dispute, if neither party dissents from that recommendation or initiates adjudication or arbitration then the recommendation becomes final and binding

Question 44

What is the difference between mediation and conciliation?

Answer 44

In mediation the mediator acts as a facilitator who helps the parties in agreeing
Conciliation allows for the facilitator to play a more direct role in the solution for the dispute.

Question 45

What is an expert witness ?

Answer 45

A person whose experience and knowledge in a particular field is beyond what is expect of a layman. They make their knowledge available to the courts or other bodies

Question 46

What is expert determination?

Answer 46

Is a process whereby the parties agree to refer their disagreement to an impartial expert third party and will then be bound by their decision.

Question 47

Can you choose who is the appointed expert in expert determination?

Answer 47

Yes the parties choose

Question 48

What is more affordable expert determination or arbitration & litigation ?

Answer 48

Expert determination is cheaper

Question 49

What are 3 advantages of expert determination?

Answer 49

⁃ procedures are controlled by the parties rather than the courts
⁃ A expert can be appointed who is familiar with the specific technical issues
⁃ It’s a confidential procedure which is less adversarial and helps parties maintain a working relationship.

Question 50

What is adjudication?

Answer 50

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 51

Can you explain how the adjudication process works in terms of time frames ?

Answer 51

a decision being made within 28 days.

Question 52

What is conflict avoidance?

Answer 52

A process to try and avoid a dispute from occurring, examples:* Good management – a QS who proactively manages responsibilities and duties to their client –
proactively working, planning and managing future work
* Clear contract documentation – reduction in ambiguities in contracts

Question 53

What are the three pillars of dispute Resolution?

Answer 53

• negotiation
• mediation
• adjudication

Question 54

What is adjudication?

Answer 54

Adjudication is a contractual or statutory procedure for swift interim dispute resolution. Adjudication is
provided by a third party adjudicator selected by the parties to the dispute.

Question 55

Is Adjudication Binding?

Answer 55

Adjudication decisions are binding unless and until they are revised by arbitration or litigation.