Conflict Avoidance, Management and Dispute Reoloution

Question 1

What is alternative dispute resoloution

Answer 1

Traditional dispute resoloution sees a sipute put before a judge. Alternative despute reolutions offer different processes to resolve a dispute often less formal, cheaper and quicker than going through the courts.

Question 2

What are some examples of dispute resoloution

Answer 2

Mediation,
Adjudication,
Arbitration,
Professional Arbitration on Court Terms,
Independant Expert Determination,
Early Neutral Evaluation.

Question 3

What is mediation

Answer 3

Mediation is a one or two day process. An independant mediator is appointed by agreement of both parties. Each party has their own private discussion space and a larger space where they both negotiate. Approximatly 2/3 mediations are solved on the day or shortly after.

Question 4

What is the mediation process

Answer 4

Documents are exchanged prior to meeting,
Opening statements are made by both parties,
Mediator facilitates discussion on key aspects of the dispute,
Negotiation of a settlement.

Question 5

What are some drawbacks to mediation

Answer 5

It can be used as an information gathering exercise,
parties do not have to attend,
can waste money if a settlement is not reached,
can confirms doubt by the other party.

Question 6

What are the benifits to mediation

Answer 6

Voluntry - Parties have a desire to resolve dispute,
Cost - Far cheaper than court or other ADR’s typically £2-3k,
Time - Usually far quicker than other ADR’s,
Relationships - Far more likly to maintain a good working relationship than other ADR’s,
Control - The parties decide the outcome rather than a third party,
Confidential - Disputes and settelments are kept out of public veiw,

Question 7

What is arbitration

Answer 7

This is a private dispute resoloution forum that is an alternative to court. A third party is selected by agreement to act as a private judge in construction this would typically be a surveyor, architect or structual engineer. This is addressed in Artical 8 of a JCT contract.

Question 8

What is the Arbitration Act 1996

Answer 8

Came into force in January 1997; key sections are as follows;
Sections 5-7: require an agreement to arbitration in writing,
Section 24: sets out how to remove an arbitrator,
Section 33: requires arbitrators to act fairly and imparcially,
Section 61: empowers the arbitrator to award costs,
Section 63: empowers arbitrators to determine what costs are recoverable.

Question 9

What are some benifits to arbitration

Answer 9

Cost - Far cheaper than court
Time - Usually far quicker than court if used affectivly
Relationships - Far more likly to maintain a good working relationship than other ADR’s
Fairness - Due to the arbitrator being selected by agreement no one party has control
Finality - The desicion of the arbitrator is final and binding
Confidential - Disputes and settelments are kept out of public veiw

Question 10

What are some drawbacks to arbitration

Answer 10

Time - If the issues are complex or there are multiple parties the dispute may continue for sometime
Location - Some contracts define a lcoation where abitration must take place which can sometimes be inconvinient or costly to attend
Sole decision - There is no jury. The decision was not overturned

Question 11

What did Pacific Basin Ltd v Bulkhandling Handymax 2011 determine

Answer 11

Pacific Basin Ltd v Bulkhandling Handymax 2011 found that despite an arbitrator error the decision was not overturned

Question 12

What is adjudication

Answer 12

The reffering party sends the other party notice of intention to refer a dispoute to adjudication
Notify the adudicating body in this case the RICS or the agreed adjudicator. The RICS has 5 days from the application tonominate an adjudicator with no conflicts of interest.
Adjudicator writes to the parties providing terms and conditions and sets out a timetable
Refering party send everyone a refferal notice which contains what is claimed and why with supporting documentation.
The other party will provide a response with their supporting documentation. The reffering party may form a reply to the resposne
The adudicator is given 28-days from appointment to review the evidence and provide the parties with their decision. This can be extended upon agreement

Question 13

What introduced statuatory adjudication

Answer 13

The Housing Grants, Construction and Regeneration Act 1996

Question 14

What are the benifits to adjudication

Answer 14

Cost - Far cheaper than litigation
Cost recover - made it possible to recover adjudication cost but only if previously stipulated in writing
Failure to comply with decision - Civil proceedure rule 07 allows the successful party to complete an application to enforce an adjudicator’s decision
Supported - The process is supported by the Technology and Construction Court (TCC).

Question 15

What did the case Enviroflow Management Ltd v Redhill Works 2017 establish

Answer 15

Enviroflow Management Ltd v Redhill Works 2017 made it possible to recover adjudication cost but only if previously stipulated in writing

Question 16

What are the drawbacks to adjudication

Answer 16

Complexity - time and costs can spiral if the dispute is particularily complex

Question 17

What is Early Neutral Evaluation

Answer 17

ENE is voluntary, confidential and conducted on a without prejudice basis. The evaluation is non-binding and aims to help clarify and define legal and factual issues in the dispute, identifying risks and likely outcomes before further significant resources are spent on the dispute

Question 18

What are benifits of ENE

Answer 18

Faster than more traditional forms of dispute resolution.
Cannot be cited in litigation.
Highlight and clarify the issues in dispute
Encouraged by the TCC as it is included within their “Court Guide”

Question 19

What are some drawbacks to ENE

Answer 19

Too short or informal to deal with complex technical disputes.
Cannot be cited in litigation.
“One party may become more entrenched in their views”

Question 20

What did Lomax v Lomax 2019 establish

Answer 20

Lomax v Lomax 2019 Judges do not have the power to order early neutral evaluation without the consent of the parties

Question 21

What are some types of dispute resoloution panel

Answer 21

Commercial rent review arbitrators and commercial rent review independent experts,
Rural practice arbitrators,
Construction adjudicators,
Non-rent arbitrators,
Mediators

Question 22

What are some common causes of dispute

Answer 22

• Errors and/or omissions in the management of the contract
• Failure by an employer, contractor or subcontractor to understand or comply with detailed contractual obligations
• Submission of poorly drafted, flawed and/or unfounded claims
• Contradictory priorities of contracting parties
• Poorly communicated design information and/or employer requirements

Question 23

what are potential outcomes for potential arbitrators who apply to be on a dispute resoloution panel

Answer 23

Pass - awarded to candidates who are judged to be competent in every catagory set out.
Refer - awarded to those who are judge to require improvement or unsatisfactory in less than two catagories.
Fail- awarded to those who are judge to require improvement or unsatisfactory in more than two catagories.

Question 24

What do rural practice arbitrators do

Answer 24

Rural practice surveyors deal with appointments under the agricultural holdings act 1986 and the agricultural tenancies act 1995

Question 25

What do Commercial rent review arbitrators and commercial rent review independent experts do

Answer 25

are appointed on rent review disputes and lease renewals under professional arbitration on courts. The largest proportion of RICS appointments.

Question 26

What is a surveyor advocate

Answer 26

a surveyor advocate is appointed by a party to present the case for the client using argument showing the tribunal why the clients case should be preffered.

Question 27

What is a single joint expert

Answer 27

appointed by the tribunal, an expert is instructed to prepare a report for the tribunal on behalf of the parties.

Question 28

What is a tribunal

Answer 28

A tribunal, generally, is any person or institution with authority to judge, adjudicate on, or determine claims or disputes

Question 29

What is an adviser

Answer 29

in this capacity, you will be retained to give advice to the client. Frequently this will be by a report or assessment of the merits of the case

Question 30

What is the expert witness acreditation service

Answer 30

EWAS is designed to raise the standards as there had not previously been any quality control. It sets universal standards for expert witnesses across the property and built enviroment sector

Question 31

What are the duties of an expert witness

Answer 31

Act independantly and impartially,
Assist the tribunal,
Provide a range of options where the evidence requires it,
Define and agree issues between the parties,
Help quantify or assess the amount of any sum in dispute,
Give expert evidence to the tribunal,
Conduct enquiries when instructed by the tribunal.

Question 32

What civil procedure rule applies to expert witnessess

Answer 32

Civil procedure rule 35 sets out some requirements for expert evidence

Question 33

What court are disputes often referred to failing successful alternative dispute resolution

Answer 33

The Technology and Construction Court. It is a specialist court led by a high court judge. It can be used to enforce adjudicator decisions under the Housing Grants, Construction and Regeneration Act 2009.

Question 34

What are some differences between adjudication and arbitrations

Answer 34

Finality - The decision of an Arbitrator is final and cannot be overturned in the courts (unless an appeal is expressly agreed beforehand). Whereas an adjudication decision can be enforced by using civil procedure rule 9 it can be appealed.

Speed - Adjudication tends to be quicker than arbitration as documents are shared faster and a decision is met over weeks rather than months.

Statutory - Statutory adjudication can be entered at any point during a dispute through means of the Housing Grants and Regeneration Act 1996. Whereas arbitration must be entered by agreement.

Awarding costs - Arbourtrators have the power to award penalty costs whereas adjudicators can only recover their own fees.