Conflict avoidance, management and dispute resolution Flashcards
Name the stages of dispute resolution, which of these are mentionned in the JCT Contract?
- Negotiation - Two parties negotiate
- Mediation - A third party mediator is elected and Mediator facilitates discussion without opinionating.
- Adjudication – statutory right – (if one party wants it the other party must do it. It’s not public, cheaper than litigation but not the cheapest option, kept out the press, you can select your adjudicator (both parties must agree), it can be specified in the contract or, the RICS provide an adjudication service, its quite quick a decision can be made in 28 days.)
- Arbitration - Arbitration is a dispute resolution procedure whereby two parties in dispute agree (an arbitration agreement) to be bound by the decision of an independent third party (the arbitrator). … An arbitrator is usually an expert in his/her own right. Lengthy, expensive, legally binding and enforceable by law.
- Litigation – (you go to TCC – technology construction court, its legally binding, generally last port of call, its governed by law and in the public domain.)
Why are ADR methods required in the contract?
The Housing Grants, Construction & Regeneration Act 1996 stipulates that they should.
Is the outcome of Mediation legally binding?
The outcome is in the form of a recommendation which, if acceptable, can be signed as a legally binding agreement, enforceable in the same way as any other contract. However, if the recommendation is not acceptable to one of the parties and is not signed as a binding agreement, it cannot be imposed by law.
What is the adjudication process?
- One party issues a notice to the other party notifying they would like to go to adjudication process, they have to agree because it’s a statutory right. A notice of adjudication can be issued at any time whether its signed under hand or under deed (6 or 12 years)
- Agree a timetable with the object of referring it to an adjudication within 7 days
- Referral - Issue relevant docs to adjudicator within 7 days
- Adjudicator can request further information with 28 days
- Decsion given by adjudicator
- Binding unless they go to court
- You cant appeal it unless you go to court
What is PACT?
Professional Arbitration on Court Terms: PACT is a process where the determination of all or some of the terms of a renewal lease is (with the consent of both parties) ‘delegated’ to an independent third party who may act either as an arbitrator or as an independent expert.
PACT offers a viable alternative to litigation.
What are some conflict avoidance processes?
- Good management
- Clear documentation
- Partnering and alliancing (building cooperation between project participants)
- Good project, client, design team and constructor management
- Good payment practice
- Record Keeping
- Regular reporting and proactivity
What is the difference between Mediation and Conciliation?
- In conciliation the parties seldom, if ever, actually face each other across the table in the presence of the conciliator
- Mediation brings parties together
- Mediation generally takes one day whilst conciliation can take longer.
- Major difference is power of the third party: Mediator facilitates discussion without opinionating whilst the Conciliator comments on the third parties and can give a recommendation for settlement.
- Mediation: Facilitative
- Conciliation: Evaluative
What kind of disputes could PACT be used for?
- Duration of a new lease
- Rent / interim rent
- Drafting
- Repair
- Service Charge
- Alienation
- Break clauses
- Other terms of the new tenancy
- Detailed drafting of the provisions to be included in the new tenancy
- Or a combination of the above
What is an expert witness?
An expert witness is a person engaged to give an opinion based on experience, knowledge, and expertise. The overriding duty of an expert witness is to provide independent, impartial, and unbiased evidence to the court or tribunal.
Does RICS have a dispute resolution service?
Yes, the DRS, dispute resolution service
