Conflict avoidance, management and dispute resolution Flashcards
Name some different forms of alternative dispute resolution?
- Mediation
- Conciliation
- Negotiation
Name some methods of typical dispute resolution?
- Arbitration
- litigation
-Adjudication
What is the difference between Arbitration and Adjudication?
- Arbitration can be a long more formal process but it is binding
- Adjudication is cheaper and quicker, giving a decision in 28 days, but the decision could be taken further if a party is dissatisfied.
What would your considerations be prior to selecting a form of dispute resolution?
- The cost of dispute resolution in proportion to the claim being made
- The timescales
- The impact on the business relationships and reputation
What is conciliation?
-Conciliation is similar to mediation
-it relies on an independent third party to aid in reaching an agreement
-the conciliator has no authority to seek evidence or call witnesses
- The decision is not binding
- the conciliator’s role is to act as a messenger and to encourage diplomacy
What is mediation?
- A form of alternative dispute resolution that brings in an independent third party to facilitate a settlement without going to court
- This is more than conciliation where the third party is only a messenger.
What is dispute resolution?
- Actions and processes take to resolve contractual disagreements between parties.
What is negotiation?
- Negotiation is the act of parties agreeing on issues of dispute.
What is your most successful negotiation?
- I negotiated a claim for a standing charge from the contractor where they claimed we had caused a delay, extending the time that machinery was hired for.
- My stance was the design information was partially late because the contractor provided incorrect information resulting in a redesign.
- We agreed that the cost of the standing time charge would be split, we would not pay for the time delay caused by the redesign. I used a programme to evidence my stance.
What could indicate the success of a negotiation on a final account?
- Both parties are satisfied with the outcome
- a willingness to work together again and long term relationship built
What is adjudication?
- Adjudication is a relatively quick form of ADR, where the outline of each party’s stance is reviewed, and the decision is given in around 28 days. without going to court. The decision can be appealed.
What enforces the requirement for a building contract to contain provisions for adjudication?
It is required by the Construction Act
Which contracts does adjudication apply to?
It applies to all contracts after 1996 when the act can into force.
What if a building contract does not contain provisions for adjudication?
- the parties will still have a statutory right to adjudication
Please explain your understanding of the arbitration process?
- Arbitration is when an arbitrator provides a binding decision based on the evidence presented without going to court.
-Arbitration is governed by the Arbitration Act 1996
-both parties must agree to procded with arbitration
-it is private proccedings
What is litigation?
-The process of resolving a dispute through the court.
- it is a public process
- It is costly and lengthy process
Name a common cause of a dispute
Name at least one: Delays, Design failures, quailty and workmanship, varaiations, value engineering
How can risk management help advoid disputes
Identifying risks, allocoating a risk owner, and manging risk lead to disputes being less likely to occur
What is arbitration ?
A dispute is agreed by both parties to be submitted to a arbitration panel to issue a binding decision on the dispute. it is a private proceddings without going to court.
Name a nominating body or service available to resolve disputes?
An adjucicator will be ether named in a contract, appointed by agreement or nominated
RICS is a adjucting appointing body, RICS may be named as a nominator or an adjuctor
What is the RICS dispute resolution service?
A service offering adjudication mediation, expert determination, arbitration.
Where would you find the mandatory RICS requirments for identifying conflicts of interest?
The RICS proffesional standard: Conflicts of intrest global
What is the RICS conflict avoidance process?
a contractual mechaism advoid long and damaging disputes.
to help identify and dispose of emerging disputes early on and avoid escalation to formal procedings
CAP introduces a panel of 1-3 experts (lawyers, engineers or surveyors) credible experts on the disputes
