Conflict avoidance, management and dispute resolution procedures Flashcards
What did you learn from the RICS guidance note on Conflict avoidance and dispute resolution in construction
- Avoiding conflict in the first instance is best practice
- Broadly separates dispute resolution into three categories. Negotiation, mediation and adjudication
How can conflict be avoided in the first instance
- setting out clear expectations and formally assigning stakeholder roles and responsibilities from the onset
- Effective and continuous communication
- Good documentation in writing
- Follow RICS standards, professional statements and guidance
If conflict occurs how do you deal with it initially
- Openly discuss the issue with all the parties and try to find a resolution through communication and negotiation
- Where possible arrange face-to-face meetings
What could indicate the success of a final account negotiation
- both parties come away happy
- Final costs are within the clients budget
- the negotiation is resolved in a timely fashion
What are the main causes of dispute
- commercial considerations
- poor, missing or ambiguous documentation
- under resourced teams
- Time pressures
- Poorly defined/ communicated scope of services
- bad communication
Provide some examples of dispute resolution
Negotiation: the process of comprising or agreeing between two parties with opposing opinions without external involvement
Mediation: The use of a third party to facilitate a negotiation. The third party does not award a winning party and is not legally binding
Adjudication: A process where an independent party assess and provides a verdict on a dispute which is binding introduced to try and speed up the dispute resolution without the need four courts
What is the difference between mediation and conciliation
in mediation the mediator acts as a facilitator who helps parties reach a decision
in conciliation the facilitator plays more of an active role and offers suggestions and advise to help resolve a dispute. their recommendation can become binding if not further disputed by either party.
Can you explain the timeframes within adjudication
First a party must serve notice to the opposing party of their intention to refer a dispute to adjudication
Within 7 days of the notice the referring party must serve its referral and also secure an appointment of the adjudicator or body names in the contract
The referral must contain a detailed explination of the referring party’s claim including any supporting documentation
Follwoing their appointment the adjudicator will issue a timetable whcih will usually involve the other party being allowed to respond. There is no set timeframe for the response but 14 days is usal practice.
The adjudicator must make his decision within 28 days of the referral. This can be extending to 42 days upon mutual agreement of both parties
Can adjudication be written out of a building contract
In short yes, if the building contract can be amended. However regardless of the amendments adjudication is a legal right and can be implemented under the Construction Act
What is Arbitration
- Arbitration is essentially a lawsuit without court involvement
- The arbitrators decision is legally binding
What are the advantages and disadvantages of arbitration
Advantages
- The process is private with no public record
- The parties can agree on a arbitrator within the contract with good expertise
- The decision can be enforced legally
Disadvantages
- No right to appeal
- The cost is applicable to both parties and smaller disputes may not be economical by this method.
What is litigation
Involves bringing the claim to civil courts
What are the advantages and disadvantages of litigation
Advantages
- Adherence to time frames with penalties imposed for non-compliance
- Judges have powers to grant interim relief to protect a parties position
- There are defined rights of appeal where errors of fact are made
Disadvantages
- Costly, especially if disputes are not managed correctly
- Longer period of time resolution
- Hearings generally conducted in public
- Judgement will be subject to appeal
Can you provide an example of when you have practiced conflict avoidance on once of your projects
On Strathray, i avoided conflict by assessing the EOT based on the overview of the facts and awarding a fair and reasonable time extension which both parties were happy with.
What is a Scott Schedule
A Scott Schedule is a document which is used in court proceedings to clearly outline the allegations in dispute
What are some typical heads of claims for a loss and expense submission
- Prolongation
- Disruption
- Fluctuations
- Prelim thickening
- Head office overheads
- loss of profits
- Finance charges and interest
- Acceleration
- Costs of claim
