Conflict Avoidance, Management and Dispute Resolution Procedures Flashcards
What is a conflict?
A disagreement between two parties
What is the difference between conflict avoidance and dispute resolution?
- Conflict avoidance is proactive (prevent before occur)
- Dispute resolution is reactive (resolve after arise)
Dispute resolution involves formal processes used to resolve conflicts once they have already arisen, such as mediation, arbitration, or litigation.
What is the benefit of ADR?
Compared to litigation, ADR is usually:
1.quicker
2.cheaper
3. more confidential
4. helps to preserve relationships between parties
When have you had to deal with a Conflict?
- Dispute over fees with consultant from 5 years ago (people left the business – verbal agreement).
- Negotiation was able to settle this, fast and no requirement for a 3rd party.
- This could have been avoided by keeping a record of the communication
(clarify misunderstandings)
How would you clearly drafted scope contracts to avoid conflicts?
- Clearly state the fee / payment terms
- Clearly defined roles / responsibilities
- Clearly defined deliverables
How may parties interpret a contract in different ways?
- Ambiguity in terms (‘reasonable time’, ‘as necessary’)
- Unclear payment terms (i.e due upon completion)
What is Alternative Dispute Resolution (ADR)?
A way of settling a dispute without going to court or tribunal for a decision
Used once internal complain handling procedures have been exhausted
What are the 4 types of alternative dispute resolution?
- Mediation
- Adjudication
- Arbitration
- Expert Determination
What is negotiation?
Simplest form of ADR where parties come together to directly discuss their issues and reach a mutually agreeable solution without third-party involvement.
Mediation
- Neutral third-party mediator facilitates dialogue between the parties to help them reach a voluntary settlement.
- The mediator does not impose a decision.
What is adjudication?
Independent adjudicator is appointed to make a binding decision based on evidence.
* Adjudicator reaches decision in 28 days
* Decisions are binding until the dispute is fully resolved through arbitration or litigation but can be challenged later
What is arbitration?
A more formal process than adjudication, where an arbitrator acts as a private judge and makes a binding decision.
* Can offer a hearing or consider written representations
* Specialist knowledge of subject area (no negligence suing)
* Arbitrator makes a final, binding decision, enforceable in court, very limited grounds for appeal
It is less formal than court but more structured than other ADR methods.
What is the difference between adjudication and arbitration?
Adjudication:
* Quicker process, typically used for interim decisions, particularly in construction disputes, with decisions made within a set timeframe (often 28 days).
* Decisions are binding until the dispute is fully resolved through arbitration or litigation but can be challenged later.
Arbitration: decisions is final and legally binding (except in limited circumstances)
* takes longer, as it involves a more formal process and is usually used for final, binding resolutions.
More formal, resembling a court process, with hearings and a detailed review of evidence.
Independent Expert Determination
- Neutral third party who issues a decision on the dispute, which is final and binding on the parties. Good for technical issues.
Difference between mediation and IED?
The mediator facilitates talks and has no decision-making authority and cannot impose a resolution
IED binds the parties through a determination
What RICS guidance is there on Conflicts?
Conflict Avoidance and Dispute Resolution in Construction (2012)
