Conflict Avoidance, Management and Dispute Resolution Procedures Flashcards
1
Q
Name some methods of alternative dispute resolution (ADR)?
A
- Negotiation
- Mediation
- Conciliation
2
Q
Name some formal methods of dispute resolution?
A
- Adjudication
- Arbitration
- Expert determination.
- Litigation
3
Q
What would you consider prior to selecting a form of dispute resolution?
A
- The cost of the dispute resolution to the claim being sought.
- Timescales involved.
- Impact on business relationships and reputation.
4
Q
What is negotiation?
A
- It is the process of two parties settling a dispute without the intercession of a third party.
- It is an informal private process which can either be done at high level or in detail and both parties agree to be bound by this settlement.
5
Q
What is Mediation?
A
- Relies on an impartial third party to mediate and guide a decision.
- Mediator tries to encourage the coming together of parties to facilitate a decision and reach an agreement.
- Final decision sits with the parties coming to a mutual agreement.
- Is not legally binding unless both parties agree on settlement.
6
Q
What is Conciliation?
A
- Relies on an independent third party to aid in reaching an agreement.
- Unlike mediation, the conciliator will not just act as a messenger but may also intervene to offer solutions and settlement proposals.
- Decisions are not legally binding.
- Settlement is reached with both parties arriving to agreement.
7
Q
What is adjudication?
A
- Is a form of statutory dispute resolution available in the UK.
- Is a simple and efficient way of resolving disputes without engaging in lengthy and expensive court proceedings.
- Relies on an independent third party who considers the claims of both parties.
- Relies on principle of ‘pay first, argue later.’
- Decision is binding and readily enforceable in courts.
- However can be overturned/appealed either through arbitration or litigation.
- Has the benefit of being time sensitive with a decision being made in 28 days.
8
Q
What is arbitration?
A
- Is a private process that issues an award which is binding with very limited grounds for appeal.
- Both parties have to be in agreement for it to be consensual.
- It is quicker and cheaper than litigation.
- Offers 3 choices:
- Shorting hearing - This usually lasts 30 days and the dispute is settled by the arbitrator through inspecting the works and holding a hearing for both parties to present their cases.
- Document only - This also lasts 30 days and is based on written information thereby mitigating the need for a hearing.
- Full procedure - This is similar to litigation and the proceedings can be lengthy as well as costly however still cheaper than litigation and is more ideal for complex cases.
9
Q
What is expert determination?
A
- An expert witness (e.g. surveyor) provides their expert opinion to determine the matter during third party proceedings.
- The expert may or may not be required to consider written representations and replies put forward by each party’s representative.
- The expert my be required to give reasoned determination and will have power over costs depending on the lease or contract.
- Unlike arbitration, an expert witness can be held liable and their determination is not legally binding.
10
Q
What is litigation?
A
- Is a public procedure which settles disputes in court and uses civil procedure rules.
- Given it is a public procedure, it therefore draws on the media attention and as such both parties reputation is affected.
- As well being lengthy it is also very costly.
- It is ideal when dealing with multi-party disputes as the courts have wider jurisdiction and can summon witnesses as well as other third parties that may or may not be inadvertently relevant to the dispute.
11
Q
What enforces the requirement of adjudication for a building contract to contain provisions for adjudication?
A
The Housing Grants, Construction and Regeneration Act 1996 (Construction Act).
12
Q
Which contracts does adjudication apply to?
A
It applies to all construction contracts entered into after the act commenced in 1996 within England, Wales and Scotland.
13
Q
What if a building contract does not contain provisions for adjudication?
A
- Parties will still have the statutory right to adjudication provided the contract qualifies under the construction act.
- If it does not qualify, then the Scheme for construction contracts will apply in its entirety.
14
Q
You mentioned in your document, techniques such as chosen procurement route can be adopted to avoid disputes, can you explain this?
A
- Each procurement comes with its own inherent risk for example:
- Traditional - Common disputes arise as a result of lack of buildability due to no early involvement of the contractor, lack of communication and fragmentation due to separate responsibilities of each party, discrepancy in design information can lead to more variations.
- Design and Build - Common disputes arise as a result of client dissatisfaction of the final outcome as contractor’s price comprises quality over speed/efficiency, clash of information between the employer’s requirements and the contractor’s proposal, valuation of variations.
- Partnering/Alliancing - Common disputes arise as a result of unforeseen circumstances and drawbacks.
Therefore adopting a more partnering approach can lead to a more collaborative team working environment as project team members prioritise project goals as oppose to organisational ones. It can also help develop a more affiliating approach than an adversarial one.
15
Q
What other methods can be adopted to avoid disputes?
A
- Good project management - Proactivity and planning/managing future work.
- Clear contract documentation - Ensure there are no ambiguities in the contract and clarify any areas of doubt so there is no room for confusion.
- Good client management - Understanding the client’s objectives and revisit and reflect on these throughout the project to ensure the project does not sway away from these.
- Good design team management - Making sure each party knows their role and no one party encroaches into another disciplines territory.
- Regular reporting and proactivity - Regularly monitoring cost, programme and quality is of upmost importance to the successful delivery of the project. This can be done through minutes in a meeting, progress reports or cost reports, interim valuations, images of works done to date and etc.
