Conflict Avoidance, Management, Dispute resolution Flashcards
What if a building contract does not contain provisions for adjudication?
Parties have the statutory right to adjudication assuming the contract qualifiies under the construction Act
If not, the Scheme for construction contracts will apply
Are there any situtations where the Construction Act does not apply? If so what’s in place
the Scheme for Construction Contracts (England and Wales) Regulations 1998, also known as “the scheme,” will apply.
What is the purpose of the Scheme for Construction Contracts (England and Wales) Regulations 1998?
To provides for deficiencies in contracts that do not comply with the HGCRA.
It does this in two parts; part one of the scheme relates to adjudication and part two relates to payment.
Give an example of when the Scheme for Construction Contracts (England and Wales) Regulations 1998 might be used
Scheme replaces contract clauses that do not comply with the HGCRA
Whilst the HGCRA provides that payment terms should be agreed such that interim, periodic or stage payments are made, it does not stipulate a timescale as it assumes the chosen form of contract will deal with this. However, if the chosen form of contract does not, this is where the Scheme implies its terms and provides for a payment cycle
Provide some advantages and disadvantages of adjudication
+ Adhere to a very strict timetable to arrive at a decision within 28 days.
- due to the relatively short timescale to reach a decision, it can be difficult for one party to fully respond to the referrers submission and therefore decisions can be contentious as the other party believes the adjudicator has not taken all information into account, only that which they could provide in time.
What might you consider when choosing a dispute resolution process?
Complexity of the issues
Desired outcome
Cost and time constraints
Name some formal methods of dispute resolution
Adjudication
Arbitration
Ligitation
Explain some differences between Adjudication, Arbitration and litigation
Process: Litigation is a formal legal process in which disputes are resolved through the courts. Arbitration and adjudication are both private processes, which means they are conducted outside of the courts.
Decision-maker: In litigation, a judge or jury makes the final decision on the dispute. In arbitration, the decision is made by an arbitrator or panel of arbitrators, who are usually chosen by the parties to the dispute. In adjudication, the decision is made by an adjudicator who is appointed by the parties, or in some cases, by a third party such as an adjudication institution.
Speed: Litigation can be a lengthy process, with cases often taking months or even years to resolve. Arbitration and adjudication are typically faster, with decisions being made within weeks or months.
Cost: Litigation can be expensive, with legal fees and court costs adding up quickly. Arbitration and adjudication are generally less expensive, although there may be fees associated with the appointment of the arbitrator or adjudicator.
Finality: The decision made in litigation is final and binding, although it can be appealed to a higher court. The decision in arbitration is usually final and binding, although there may be limited grounds for appeal. The decision in adjudication is binding on an interim basis, meaning that it is enforceable until the dispute is finally resolved through litigation or arbitration
Name some forms of Alternative Dispute Resolution
Negotiation
Mediation
Conciliation
What are the differences between Conciliation and Mediation
Role of the third party: In conciliation, the third party (the conciliator) plays a more active role in facilitating the resolution of the dispute. The conciliator may make suggestions or provide solutions to help the parties reach a mutually acceptable outcome. In mediation, the third party (the mediator) is usually more neutral and does not provide solutions, but instead helps the parties to communicate and negotiate with each other.
Binding nature of the outcome: In mediation, the outcome is not binding unless the parties agree to make it so. This means that if the parties cannot reach an agreement, they can still pursue other forms of dispute resolution, such as arbitration or litigation. In conciliation, the outcome may be binding if the parties agree to it.
Formality: Mediation is usually less formal than conciliation, with the mediator often meeting with the parties in an informal setting. Conciliation may be more formal, with a structured process and a written agreement outlining the terms of the resolution.
Timing: Conciliation may take place before or during legal proceedings, with the aim of avoiding or settling a dispute before it goes to court. Mediation may be used at any stage of a dispute, including before, during, or after legal proceedings.
What is Pre-action Protocol?
Pre-action protocol is a set of guidelines and procedures that parties to a dispute are expected to follow before initiating court proceedings in England and Wales. The pre-action protocol aims to encourage parties to exchange information and documents, explore alternative dispute resolution methods, and ultimately try to reach a settlement without the need for court proceedings.
The pre-action protocol for construction and engineering disputes requires the parties to exchange information about the dispute, consider mediation, and attempt to reach a settlement before proceeding to court.
The pre-action protocol typically includes steps such as:
1.Informing the other party of the dispute in writing and providing details of the claim.
2. Providing any documents or information that support the claim or defence.
3. Considering alternative dispute resolution methods, such as mediation or arbitration.
4. Allowing the other party a reasonable amount of time to respond to the claim and to provide any relevant information.
5. Attempting to reach a settlement before initiating court proceedings.
The pre-action protocol is designed to encourage parties to engage in constructive dialogue and to try to resolve disputes as early and cost-effectively as possible. By following the pre-action protocol, parties can potentially save time and money, avoid the stress of court proceedings, and maintain a good working relationship with the other party.
What is a Scott Schedule?
A Scott Schedule is a document used in legal proceedings, particularly in construction disputes, to set out the issues in dispute and the evidence relating to each issue. It is essentially a table that lists the factual issues in dispute and the relevant evidence that each party relies on to support their position.
The Scott Schedule is named after the case of Scott & Another v Avery (1856), in which a table was used to present the evidence in a dispute over the construction of a railway tunnel.
In construction disputes, a Scott Schedule can be used to help parties identify the key issues in dispute, the evidence supporting each party’s case, and to facilitate settlement negotiations. The Scott Schedule can be prepared jointly by the parties or by an independent expert appointed by the court.
The table typically consists of two columns: the first column sets out the factual issues in dispute, while the second column sets out the evidence or arguments that each party relies on to support their position on that issue. The evidence may include witness statements, expert reports, photographs, drawings, and other relevant documentation.
The Scott Schedule can help parties to focus on the key issues in dispute and to identify areas of agreement or disagreement. It can also be used to prepare for trial or other forms of dispute resolution, as the document provides a clear summary of the evidence that each party intends to rely on in support of their case.
What is independent expert determination?
Independent expert determination is a form of alternative dispute resolution (ADR) that involves appointing an independent expert to resolve a dispute between parties. The expert is typically a specialist in the relevant field, such as an engineer, accountant, or surveyor, and has the necessary expertise to evaluate the issues in dispute.
The process of independent expert determination typically involves the following steps:
1.Appointment of the expert: The parties agree on an independent expert to be appointed to evaluate the dispute.
2. Submission of evidence: The parties submit their evidence and arguments to the expert, usually in the form of written statements and documentation.
3.Evaluation by the expert: The expert evaluates the evidence and issues a decision, usually in the form of a written report. The expert’s decision is typically binding, meaning that the parties agree to be bound by the expert’s decision.
4. Implementation of the decision: The parties implement the expert’s decision, and the dispute is resolved.
Independent expert determination can be a useful form of ADR, particularly in complex disputes where the parties may not have the necessary expertise to evaluate the issues in dispute. It can be quicker and less costly than traditional court proceedings, as the process is typically less formal and the expert’s decision is usually final and binding.
However, it is important to note that independent expert determination may not be appropriate for all types of disputes, and parties should carefully consider the pros and cons of this form of ADR before agreeing to it. It is also important to ensure that the expert is truly independent and unbiased, in order to ensure a fair and impartial evaluation of the issues in dispute.
What conflict avoidance processes do you use?
Good management - proactively planning and managing work, raising issues early, - provides confidence in ability and enables problems to be analyses and managed
Clear Contract Documentation - less ambiguity = less disputes arise. Key is to identify the main risk areas and set out strategies for dealing with them
Partnering and Alliancing - Building cooperating between project participants to foster team work, problem solving and focus on delivery can avoid disputes
Good Project Management - Proactively managing time, costs and risks to address the most diificult issues
Good Client Management - understand clients objectives, approach to risk and maintaining good lines of communication, easilr to discuss issues with client and discuss how best to deal with them
Good constructor management - understand the project, the contract and the programme. Regularly assess progress and proactively deal with issues. Can deal with problems of delay at the time.
Good design team managament - provision of information within the design team and between design team and contractor is crucial. Good forward planning can avoid disputes
Good payment practice - valuation and payments carreid out promptly to guarentee cashflow can avoid conflicts
Record keeping - disputes can be resolved by reviewing records. Records of changes should be kept and the impact of that change on the project
Regular Reporting and Proactivity - regularly monitoring costs, progress, quality through meeting minutes, progress reports, drop lines on programmes, photos, action tracking.
What is negotiation?
The process whereby parties work out between themhow to resolve an issue that has arisen. Power to resolve the dispute rests with the parties.
