Conflict Avoidance, Management and Dispute Resolution Procedures Flashcards
What is the difference between dispute avoidance and dispute resolution?
Dispute avoidance is the act of avoiding a dispute in the first place.
Dispute resolution is the process of resolving a dispute if one occurs.
What are the main causes of disputes?
- Unclear contract documents
- Ambiguity or contradiction in contracts, particularly if amended
- Poor communication
- Resourcing pressures
- Unclear scope of service
How can you avoid a dispute?
- Have clear and concise documents
- Effective and regular communication
- Following company procedure and RICS guidance
- Ensure important information is in writing
How would you deal with a conflict?
- understand the reason
- Understand the contract provisions around it
- Collate supporting information
- Communication and negotiation to come to a resolution
What are the pillars of dispute resolution defined by RICS?
Negotiation
Mediation
Adjudication
What is adjudication?
A method of ADR where an independent adjudicator is appointed to review the dispute and form a decision (legally binding)
What is the process of adjudication?
Referring party issues a notice to say they are raising a dispute.
Then there are 7 days for parties to provide all supporting information and appoint an adjudicator
Adjudicator reviews information provided and provides a timescale on their decision - must be within 28 days however can be up to 42 days if both parties agree.
Adjudicator decision is binding unless they have acted outside their jurisdiction or have been found to be bias - in which case the decision can be overturned through arbitration.
What if a contract does not include provisions for adjudication?
Does not matter as all construction contracts have the statutory right to adjudication due to the HGCRA 1996.
Advantages of adjudication?
- Cheaper
- Quicker
- Less adversarial
Can a party refer to adjudication if it is not listed in the contract?
Yes - all parties under construction contracts have a statutory right to adjudication under the HGCRA.
Who pays for adjudication?
Fees of adjudicator - shared by both parties
Adjudicator is able to determine how the associated costs are split i.e. legal fees
Which court are construction issues heard in?
Technology and Construction Court.
What is your understandings of Alternative Dispute Resolution?
Forms of dispute resolution entered into parties voluntarily and avoids traditional methods of resolution such as Arbitration and Litigation.
Under what rules did ADR become more prominent?
Civil Procedural Rules 1999
Which rules govern Arbitration under JCT?
CIMAR - Construction Industry Model Arbitration Rules - Arbitration rules specifically for construction contractors complying with Arbitration Act
What did the Civil Procedural Rules set out to do?
Reduce adversarial methods of dispute resolution.
What is mediation?
Where an independent third party is appointed to help facilitate discussions and resolve a dispute without entering legally binding proceedings.
What is conciliation?
Concilliation is similar to mediation in that a third party is appointed to resolve a dispute however they are able to form an opinion which may form a binding agreement.
What is a valuative mediation?
Between mediation and concilliation where mediator evaluates dispute and advises on likely outcome. Mediator does not facilitate discussion.
What is expert determination?
Where an expert is asked for the outcome of a dispute - can be used as a binding decision.
Difference between expert determination and expert witness?
Expert Determination - Expert determines outcome
Expert Witness - Expert provides opinion as part of another form of dispute resolution i.e. witness in a trial
What is Arbitration?
Formal trial proceedings however not held in a public court.
What are the benefits of Arbitration?
- Proceedings held and resolved in private
- Quicker and cheaper
Are you aware of any rules and regulation relating to Arbitration?
Arbitration Act 1996
What is Litigation?
Formal court court proceedings to resolve a dispute.
What rules govern Litigation?
Civil Procedural Rules
What are the advantages and disadvantages of Litigation?
Advantages:
- Decision is binding
- Limited rights of appeal
Disadvantages:
- Time consuming
- Adversarial
- Public
What is a Conflict Avoidance Pledge?
A pledge to work proactively and in a collaborative manner to try and resolve differences in opinion prior to them becoming a dispute.
Signing the pledge signals that you’re good to work with and that you maintain good relationships. Also demonstrates that you’re committed to delivering value for money.
