Conflict avoidance, management and dispute resolution procedures Flashcards
How do you avoid conflict on a project?
- Manage client expectations and understand the brief.
- Clear tender information is clear - clear scope of works - avoid conflicting documents
- Carefully drafted contract
- Tranparent negotiations
- Ensuring contract notices on time and making sure client aware of payment timings.
- Keeping good records of delays and causes and quality issues etc
- Idnetiifying problems early and opening up for discussion as they arise.
If there is a dispute, use a people approach first and try to negotiate an agreement before going legal. • As a last resort you should go legal.
Talk me through how you would go about negotiating something?
• Firstly I would prepare, as understanding you points fully is critical. • Secondly I would pre-determine what I can afford to give away, know my bottom line. • Focus on the bigger picture, don’t get stuck on one item. • Try to negotiate a win/win situation. • Never accept the first offer. • Finally, I would negotiate the small deals before the big ones.
What is alternative dispute resolution?
Dispute resolutions processes designed to resolve a dispute outside the courts before litigation occurs.
What forms of alterantive dispute resolution do you know?
- Mediation
- Arbitration
- Independent Expert Determination
- Adjudication
- Early neutral evaluation
What are the advantages of ADR?
- Speed - faster CPR rules
- Cost cheaper!
- informality
- confidential
- reputation
- quality of decision (surveyor rather than a judge)
- opportunity for negotiation
What happens if a party does not accept the mediators decision?
- Faulting party would still need to pay for the mediator however it can be taken to further dispute (eg adjudication or litigation).
What is Arbitration?
- •Arbitrator appointed under Arbitration act 1996
- partially judicial role
- Parties bound by the decision
- Fast and cost effective, confidential
- Specialist knowledge of subject area
- can order a hearing
- Cannot be sued for negligence
- court of appeal can overturn their decision on point of law
The use of an Arbitrator to settle disputes. • It is a private, judicial determination of a dispute by an independent third party.
Arbitration
An arbitration is a legal proceeding under the Arbitration Acts and the arbitrator reaches a decision on the basis of evidence put before him or her sometimes at a formal hearing. The arbitrator can call for discovery of documents and interprets the evidence. The arbitrator’s decision is enforceable as if it were a judgment of the court. Although the arbitrator is not liable for negligence the court can set the judgment aside on the grounds of misconduct.
What is the Arbitration Process?
• The appointed Arbitration body must be notified, and they will appoint an Arbitrator. • The main hearing will be held, whereby each side will present their version of the conflict, along with their evidence. • The arbitrator will hen base their decision on what they believe to be fair and just, as they are not required to follow the law or reasoning of earlier case decisions. • It is very difficult to appeal an Arbitration, they can only be appealed if it can be proved that the arbitrator was: o Corrupt. o Bias. o Arbitrator exceeded their power.
What is Mediation?
Mediation
- Neutral mediator
- faciliates negotation
- confidentrial and informal
- cannot impose resolution on the parties
- without prejuidce
- RICS Mediation guidance note 2014
The name given to a confidential process whereby parties to a dispute invite a neutral individual to facilitate negotiations between them with a view to achieving a resolution of their dispute.
What is the Adjudication Process?
- •Housing grants construction and regeneration act (The construction act 1996) means it is commonly used on construction contracts
- Uses their own knowledge and jurisdiction of the law
- Legally binding decision
- 28 day process - strict timescales form the legislation
- Notification of Adjudication from one party to another. • From receipt of notification, parties have up to 7 days to appoint the adjudicator. • Adjudicator will review parties cases, and make their decision within 28 days. (This can be extended to 42 days) • The adjudicator does not have the power to award costs, unless the parties agree to grant him this power.
What is Litigation?
• Litigation is the process of taking legal action, i.e. in the construction industry, it will typically be taken to the Construction and Technology Court.
Under JCT how long does an adjudicator have to make his award?
28 days from issue of the referral notice, but this can be extended to 42 if both parties agree.
What is a Dispute Board?
• A group that is assigned to a project from inception. They are more a preventative form of dispute resolution rather than reactive, as they will try to identify where disputes may arise, and takes steps to ensure they do not happen. • Usually being used on Massive jobs.
Why can disputes occur?
• Poor performance of parties. • Uncontrolled change. • Complex contractual relationships / inadequate tender and contract documentation. • Inability or reluctance to pay. • Inappropriate procurement. • Pressure to start on site before design and or contract finalised e.g. Letters of Intent (LOI)
