Conflict Avoidance, Management and Dispute Resolution

Question 1

How can you avoid conflict in the first instance?

Answer 1

Clearly state in your tender and contract documents exactly what is required from your parties, ensure continuous and effective communication between all parties, put everything in writing to ensure there is always documented evidence should a dispute arise, follow company procedures and policies (including quality assurance), follow RICS standards, professional statements and guidance.

Question 2

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

Answer 2

Raise the issue with all parties and try to resolve the issue through communication and negotiation. A face-to-face meeting is usually the best

Question 3

What could indicate the success of a final account negotiation?

Answer 3

All parties come away happy. Costs agreed and within the client’s budget. The negotiation is resolved and in a timely manner.

Question 4

In your opinion what causes the most disputes?

Answer 4

Commercial aspects, unclear or conflicting specifications, teams under pressure, unclear scope of service.

Question 5

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

Answer 5

Consider alternative dispute resolution to resolve the dispute.

Question 6

What is dispute resolution?

Answer 6

Dispute resolution refers to several processes that can be used to resolve conflict, dispute, or claims.

Question 7

What is ADR?

Answer 7

Alternative Dispute Resolution refers to processes which are alternatives to the traditional binding dispute resolution procedures such as litigation and arbitration. The main forms of ADR are Negotiation, Mediation, Adjudication.

Question 8

What is TCC?

Answer 8

Technology and Construction Court. Handles disputes about buildings, engineering, and surveying. The TCC does not usually handle cases with a value less than £250,000.

Question 9

What is Mediation?

Answer 9

The parties agree on an independent third party to facilitate discussions to try and reach an agreement between the parties. The power to settle remains with the parties, but the process is led by the mediator. The process is non-binding.

Question 10

Can you explain what a negotiation is?

Answer 10

The process whereby the parties work out between themselves how to resolve issues. The power to settle the dispute rests with the parties.

Question 11

What is Conciliation?

Answer 11

A process similar to mediation. A conciliator will facilitate discussions and aim to have a settlement between the parties. The conciliator prepares a ‘recommendation’ which sets out their dispute. If neither party dissents from that recommendation or initiates adjudication or arbitration, then the recommendation becomes final and binding.

Question 12

What is the difference between mediation and conciliation?

Answer 12

In mediation, the mediator acts as a facilitator who helps the parties to reach an agreement. Conciliation allows the facilitator to play a more direct role in finding a solution to the dispute. The conciliator can make suggestions for certain proposals which can be binding.

Question 13

What is an expert witness?

Answer 13

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

Question 14

What is expert determination?

Answer 14

Expert determination is the process whereby the parties agree to refer their disagreement to an impartial expert third party and will then be bound by his or her decision. It is typically used for more technical disputes than legal disputes.

Question 15

What are the advantages of expert determination?

Answer 15

Provides cost and time efficient solution. An expert can be appointed who is familiar with the specific technical issue.

Question 16

What is adjudication?

Answer 16

Fast-working solution to allow construction contract disputes to be resolved more quickly and cost-effectively than arbitration and litigation?

Question 17

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

Answer 17

Following the crystallisation of dispute, either party can serve notice on the other party of its intention to refer the dispute to adjudication.

1) Within 7 days of that notice, the referring party must serve on the other party its Referral. If the Referral is not served within that time, the adjudication is likely void.
2) The Referral must contain a detailed explanation of the referring party’s claim in respect of the dispute and any supporting documentation.
3) Within that 7-day period, the referring party must secure the appointment of an adjudicator. This will either be the named person in the Contract Data Part One, or if no-one is named the nominating body identified in the contract.
4) Following the appointment, the adjudicator will set-out a timetable. The Adjudicator must make his decision by 28 days of the Referral.

Question 18

Can the decision of 28 days be extended?

Answer 18

The time can be extended to 42 days by mutual agreement of both parties.

Question 19

Is the adjudication process binding?

Answer 19

The adjudicator’s decision will be binding to the parties unless the adjudicator acts outside their jurisdiction or is biased towards one party.

Question 20

Is there an appeal process with adjudications?

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 is an implied term through the Construction Act.

Question 22

Who pays for adjudication?

Answer 22

Both parties are jointly liable for the adjudicator’s fees. The adjudicator can decide who is to pay the fees and reasonable expenses.

Question 23

What is Arbitration?

Answer 23

Arbitration is essentially a lawsuit without court involvement. The parties agree (either in contract, or subsequent agreement to avoid lawsuit) to submit their dispute to arbitration. The parties’ agreement gives the arbitrator power to issue a legally binding decision.

Question 24

What are the advantages of Arbitration?

Answer 24

The process is private - there is no public record of proceedings. Speed (compared to litigation). The parties can agree on an arbitrator with relevant experience and expertise. The arbitrator’s award can be enforced as a judgement of the court.

Question 25

What are the disadvantages of Arbitration?

Answer 25

The parties must bear the cost of both the arbitrator and the venue. Limited appeal rights. If the matter is complicated then the Arbitrators fees can be expensive.

Question 26

What is Litigation?

Answer 26

Litigation involves one of the parties bringing a claim to the civil courts.

Question 27

What are the advantages of litigation?

Answer 27

Judges can compel the parties to comply with time frames and have the power to impose sanctions. Judges have the power to provide interim relief on a party’s position pending the final judgement.

Question 28

What are the disadvantages of litigation?

Answer 28

Potentially greater costs if the dispute is not well managed or the other party causes delays. Longer period to obtain judgement. Proceedings generally conducted in public.