Conflict avoidance, management and dispute resolution

Question 1

What are some different forms of Alternative Dispute Resolution (ADR)?

Answer 1

1. Mediation
2. Conciliation
3. Negotiation

Question 2

What is dispute resolution?

Answer 2

Actions and processes taken to resolve contractual disagreements between parties.

Question 3

What are some formal forms of dispute resolution?

Answer 3

Adjudication
Arbitration
Litigation

Question 4

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

Answer 4

1. Nature of the dispute
2. The cost of dispute resolution in proportion to the claim being sought
3. The timescales involved
4. The impact on business relationships and reputation.

Question 5

What is negotiation?

Answer 5

Negotiation is where parties reach an agreement through an informal private or facilitated agreement.
This should always be attempted prior to any ADR or formal dispute resolution processes.
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 6

When has been a time where you have successfully negotiated?

Answer 6

When agreeing final account on the University of Warwick Anatomy and clinical skills there was discrepancy between mine and the contractors values of some variation costs.
- Held a meeting internally with my team and the client to understand their flexibility on the costs and set a limit that I was not to agree upon prior to the main negotiation aiding justification of my valuation.
- I went into the main meeting and as throughout the project I had agreed variations and the final account as an ongoing process and had effective communication with the contractor I had built a level of rapport and mutual respect. I explained the non-negotiable items and items I had conceded with my reasons why/how these had been decided.
- The end outcome meant there were no outstanding variations and both the client and contractor were satisfied, the budget was not exceeded, the client’s brief was met and the conclusion was positive on the whole.

Question 7

What could indicate the success of a negotiation?

Answer 7

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

Question 8

What is mediation?

Answer 8

This is a form of ADR and relies on bringing in an impartial third party to mediate and guide a decision.
The mediator tries to encourage a coming together of parties in order to facilitate a decision as opposed to acting only as a messenger (key difference from conciliation)
mediation encourages the coming together of parties and reaching an agreement.

Question 9

What is conciliation?

Answer 9

This process is similar to mediation and relies on independent third party to aid reaching an agreement.
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 10

What is adjudication?

Answer 10

Adjudication is a statutory form of dispute resolution in the UK.
It is relatively simple and efficient (28 days)
It avoids lengthy and costly court proceedings
It relies on an independent 3rd party (named in the contract) who considers the claims of both parties.
A binding decision is made by the adjudicator which can be appealed either through arbitration or litigation.
It has the advantage of being time sensitive.

Question 11

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

Answer 11

The housing grants, construction and regeneration act 1996 (construction act)

Question 12

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

Answer 12

Parties still have the statutory right to adjudication assuming the contract qualifies under the construction act.
Failing this the scheme for construction contracts will apply in its entirety

Question 13

Explain your understanding of arbitration?

Answer 13

Arbitration is a procedure for the resolution of disputes which is under the control of the parties.
Certain conditions must be met e.g. 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.
Proceedings are undertaken in a private setting - reputations are withheld.

Question 14

What is the difference between arbitration and litigation?

Answer 14

ARBITRATION
-Governed by the arbitration act 1996
- In order to arbitrate there must be an agreement to enter into arbitration by both parties.
- Parties have a wide degree of discretion as to how the proceedings are conducted
-Procedures are similar to litigation with formal submissions from both parties, expert evidence, hearings and a decision by the arbitrator.
- Private process

LITIGATION
- Proceedings are conducted in court, not private
- It is a public process that follows civil procedure rules
- Despite having high costs the process can deal with multi-party disputes and civil procedure rules which aim for accessibility, speed and efficiency.

a. Litigation is higher up so get a more definitive result if escalated
b. Litigation takes longer so costs more/time
c. Litigation is made public
d. Litigation is subject to appeals.

Question 15

Negotiation

Answer 15

Non-Binding by mutual agreement

Question 16

Mediation

Answer 16

Non-Binding using a Third party.
Not based on facts evidence or law

Question 17

Conciliation

Answer 17

Third party acts as a messenger rather than facilitating a decision unlike mediation.

Question 18

d. Adjudication

Answer 18

Binding, law based.
Adjudicator assigned to reach impartial decision within 28 days

Question 19

Arbitration

Answer 19

Binding, law based.
Contract must contain a written agreement to arbitrate. The parties can choose to incorporate an arbitration procedure.

Question 20

Litigation

Answer 20

Parties have the right to refer their matter to an appropriate court.
Decision is imposed by court of law
Made public, takes longest.
Subject to appeals

Question 21

Are you able to advise on the adjudication process?

Answer 21

-A cheaper and quicker alternative to traditional dispute resolution procedures.
-One party initiates the adjudication process. Within 7 days they must state the details of the reason they wish to adjudicate, whilst appointing an adjudicator.
-Once an adjudicator is appointed, they will request a response from the opposing party.
-When all information is received the adjudicator will make a decision within 28 days.
-The decision is binding, unless there has been an error in judgment.

Question 22

What’s the difference between a disagreement and dispute?

Answer 22

A dispute is a disagreement, and usually relies on a third party to step in.

Question 23

What happens if contract does not contain dispute resolution clauses?

Answer 23

Then common law dictates that dispute resolution procedures can still be implemented if the contract is recognised by RICS.

Question 24

How does dispute resolution look on your company?

Answer 24

It looks poorly on performance of that company, as they may not be undertaking their duties properly. It can impact employee retention and employment. It also has a financial impact as it costs money to enter disputes.

Question 25

How do you mitigate chance of disputes arising?

Answer 25

I always endeavour to resolve disputes through negotiation prior to escalation, and ask for second opinions or escalations where required from senior colleagues. I employ a communications plan, early in the project and ensure that communication, and acting fairly occurs as early as possible. I adhere to RICS rules of conduct. I manage data in accordance with my employers policy, ensuring I always get things in writing by email or meeting minutes.

Question 26

How would you deal with a conflict of interest?

Answer 26

• If I believed that a conflict of interest was likely then I would first speak to a partner in my firm and advise them of the possible conflict. The first approach should be to not carry out the works where there is a conflict of interest…
• If the client still wanted to proceed, I would then review whether the client’s best interests would be served and I would communicate the conflict with the client in writing. if they were in the client’s best interests and I was sure I could act competently and diligently, I would seek informed consent to proceed, if they weren’t then I would advise the client that I would be unable to proceed due to the conflict. I would document all of the decisions made.
• I could use an information barrier to help manage a conflict of interest
  (note - A firm must have systems and controls in place appropriate to the size of their business)