Conflict Avoidance, management and dispute resolution procedures Flashcards
What procedures can you adopt to avoid disputes?
Clear contract documents and terms of engagement
Effective communication procedures between all parties
Accurate record keeping
Issuing written correspondence to confirm actions and decisions taken
Follow company and contractual procedures
Follow RICS standards and professional guidance statements
In your experience what are some common causes of disputes?
Errors and conflicting information within tender documentation
Lack of knowledge / understanding of contractual obligations
Contract errors
Poor contract administration
Poor quality of workmanship
Delays to payments / non-payment of claims
Nonconformity of contractual obligations
What is the TCC?
The TCC stand for Technology and Construction Court
TCC cases are govered by Civil Procedure Rules
Suitable claims assessed within the TCC include:
Building or Construction Disputes
Claims relating to professional services such as engineering, surveying and accountancy.
What is an expert determination?
An expert is someone who is an expert in their particular field who applies their knowledge, experience and specialist training to determine disputes.
They are appointed by agreement of the parties and the decision is binding.
What is mediation?
Mediation is a form of dispute resolution that is entered into by the consent of both parties.
A third party mediator is appointed to resolve the dispute in question and assists in a supported negotiation to reach an acceptable outcome.
Mediation is an informal process allowing parties to adopt a flexible approach in reaching an outcome allowing relationships to be maintained.
The mediator has no legal authority or power to instruct either party to do anything and the process is not binding.
What is conciliation?
Conciliation is used by mutual consent of both parties. The process adopted is very similar to mediation in a supported style of negotiation.
Primarily, the conciliators role is to act as the messenger and encourage diplomacy.
In the event negotiations breakdown the conciliator will prepare a recommendation setting out how the dispute should be resolved.
If neither party objects to the recommendation within one month this then becomes final and binding.
What is adjudication?
Is a statutory procedure provided by a third party independent adjudicator who is selected by the parties in dispute.
The parties can select the expert or highlight characteristics they need to offer.
The appointed expert can act in an investigative manner.
There are no legal submissions or examinations of evidence.
Adjudication is less expensive than litigation and arbitration procedures.
The outcome issued by the expert is not supported by statute with the experts powers limited to the confines of the contract.
The experts outcome must be enforced by court proceedings if appealed
What is litigation?
Litigation requires the dispute to be resolved through legal action and involved formal court proceedings.
Litigation is thought to offer access to the most reliable and well thought out decision making.
Judges can instruct that parties comply with the time frames required and impose sanctions if there are any breaches.
Litigation often brings greater costs and can last between 12-18 months
Proceedings can be conducted in a public setting and can be damaging to the reputation of the unsuccessful party
What is arbitration?
A final and binding decision made by an independant arbitrator, based on evidence and arguments submitted by parties to support their case.
What is negotiation?
Discussions between parties to an agreed settlement.
What is Alternative Dispute Resolution?
Any method of resolving a dispute that is an alternative to the courts.
It is typically cheaper, more flexible, more private and quicker that litigation.
What would your considerations be prior to selecting a form of dispute resolution?
The cost of dispute resolution in proportion to the claim being sought.
The timescales involved.
The impact on business relationships and reputation.
What if a building contract does not contain provisions for adjudication?
Parties still have the statutory right to adjudication, if the contract qualifies under the construction act.
Please explain your understanding or the arbitration process?
Arbitration is a procedure for the resolution of disputes which is under control of the parties, and requires both parties consent to use arbitration and is agreed to in advance.
Certain conditions must be met, e.g. a genuine dispute.
The proceedings are undertaken in a private setting, so the reputations of both parties can be preserved to an extent.
Arbitrators are bound by the evidence provided. Awards are final and binding.
Can you explain in detail the difference between arbitration and litigation?
Arbitration:
- Governed by the Arbitration Act 1996.
- There must be an agreement between parties to enter into arbitration.
- Parties have a wide degree of discretion as to how proceedings are conducted.
- It is a private process.
- It requires evidence to be submitted, hearings and a decision by the arbitraitor.
Litigation:
- It is not private, it is conducted in court.
- Follows civil procedure rules.
- High costs.
