Conflict avoidance, management and dispute resolution procedures

Question 1

Why would you choose litigation over arbitration?

Answer 1

If the other party is not voluntarily participating in the ADR process.

Question 2

Is adjudication compulsory?

Answer 2

Yes

Question 3

Do you think adjudication is cost effective?

Answer 3

• It depends on the amount of the claim
• Absolutely, when compared against litigation.

Question 4

What law guarantees the right to adjudication?

Answer 4

The Local Democracy, Economic Development and Construction Act 2009

Question 5

Which high court enforces construction & litigation?

Answer 5

Technology and Construction Court (TCC)

Question 6

What does the JCT adopt as the go-to ADR method?

Answer 6

• Serious consideration to Mediation
• Adjudication
• Then Arbitration

Question 7

What section of JCT focuses on ADR?

Answer 7

• Section 9
• Article 7

Question 8

How do you avoid conflict?

Answer 8

• Good management
• Being proactive
• Good record keeping
• Partnering

Question 9

What is mediation?

Answer 9

• Mediation is a completely voluntary and confidential form of Alternative Dispute Resolution (ADR). It is when an impartial person or mediator - trained in dealing with difficult discussions between 2 opposing sides - acts like a referee in a dispute.
• Mediator doesn’t make a ruling, they facilitate communication

Question 10

What is adjudication?

Answer 10

• Adjudication is a compulsory dispute resolution mechanism that applies to the UK’s construction industry.
• Consensual agreement
• Legally binding unless undone by arbitration & litigation.

Question 11

Is adjudication binding?

Answer 11

• Yes, undone by litigation or arbitration
• Adjudication decisions are binding unless and until they are revised by arbitration or litigation.
• Rarely overturned.

Question 12

What is arbitration?

Answer 12

• Arbitration is an alternative to litigation for resolving construction industry disputes.
• Consensual agreement
• Arbitration Act 1996

Question 13

Is arbitration legally binding?

Answer 13

Arbitration is legally binding in the same way as a judgment would be.

Question 14

What are the timescales of adjudication/arbitration?

Answer 14

• Adjudication: 28 days
• Arbitration: Can take months

Question 15

In JCT, if no adjudicator is named, who will act as adjudicator?

Answer 15

• Royal Institution of British Architects
• Royal Institution of Chartered Surveyors
• Association of Independent Construction Adjudicators
• Chartered Institute of Arbitrators

Question 16

In JCT, if no arbitrator is named, who will act as arbitrator?

Answer 16

• President or Vice President of:
• Royal Institution of British Architects
• Royal Institution of Chartered Surveyors
• Chartered Institute of Arbitrators

Question 17

How does NEC deal with resolving disputes?

Answer 17

• Option W1: Used when adjudication is the method of dispute resolution and the United Kingdom Housing Grants, Construction and Regeneration Act 1996 does not apply
• Option W2: Used when adjudication is the method of dispute resolution and the United Kingdom Housing Grants, Construction and Regeneration Act 1996 does apply
• Option W3: Used when a Dispute Avoidance Board is the method of dispute resolution and the United Kingdom Housing Grants, Construction and Regeneration Act 1996 does not apply