Conflict avoidance, management and dispute resolution procedures Flashcards
How do you avoid conflict on a project?
• Firstly, ensure that the tender information is clear, concise when tendering the project. i.e. a clear scope of works.
- Remain respectful and honest
• 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.
- Try to negotiate a win/win situation.
- Finally, I would negotiate the small deals before the big ones.
What is the Adjudication Process?
- 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.
What is Arbitration?
- The use of an Arbitrator to settle disputes.
* It is a private, judicial determination of a dispute by an independent third party.
What is the Arbitration Process?
- The appointed Arbitration body must be notified, and they will appoint an Arbitrator.
- The main hearing will be held,
- The arbitrator will then base their decision on what they believe to be fair and just
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.
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)
What techniques are available to resolve disputes?
- Negotiation – problem solving efforts of the parties themselves.
- Mediation or conciliation – 3rd party intervention makes a non-binding decision.
- An adjudicative process – final outcome determined by a 3rd party who’s decision is binding.
What is the difference between adjudication and arbitration?
• Adjudication is meant to be quicker and cheaper than arbitration or litigation, as adjudicators must reach a decision within 28 days. Adjudication decisions can be appealed and taken to arbitration or litigation.
Can you tell me the dispute resolution procedure listed in one of your contracts and who the nominated body is?
- Adjudication as default by JCT
- Adjudicator is the RICS.
Can you explain to me the differences between mediation and conciliation?
The main difference between conciliation and Mediation is that a conciliator can recommend an outcome
Can you name some key principles to adopt which can help to avoid conflict?
Good management
• Clear contract documentation – reduction in ambiguities in contracts
• Partnering and alliancing
• Good project management – proactively managing all aspects of time, money and risk on a project.
• Good client management .
• Good design team management –
• Good payment practice .
• Record keeping – meticulous record keeping on all aspects of work.
• Regular reporting
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 Mediation?
Mediation is 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.
