Conflict avoidance, management & dispute resolution procedures Flashcards
Techniques to avoid conflict?
- Good client management
- Good constructor management
- Provision of services
- Good payment service
- Record keeping
- Regular reporting and proactivity
Techniques to handle conflict.
- Avoid - always try to come to an understanding first.
- Learn techniques - recognise when it is going to happen.
- Stay within expertise.
- Good management - proactively managing, planning and early raising of issues.
- Clear contract documentation - ensure contracts are in place, avoid ambiguity, identify risk.
- Partnering and alliancing - building co-operation, team working, joint problem solving, an emphasis on sucessful project delivery.
- Good project managment - proactively
What is conflict?
Where impartiality comes into question?
What are Calderbank letters?
For rent reviews. An offer in writing setting out the terms to settle the dispute without taking arbitration further. Dual purpose; settle rent review, gain protect on costs. If recipient doesn’t accept, open themselves up to risk of covering other parties costs.
What is PACT?
Professional Arbitration on Court Terms (PACT), administered by RICS and the Law Society. For lease renewal disputes. Quick, efficient and flexible. Decision is legally binding.
What are the three main ways of dispute resolution?
- Negotiation
- Mediation
- Adjudicative process
What the advantages of ADR?
- Speed
- Informal - outside court
- Greater opportunity fo negotiation
- Confidentiality
What ADRs are available?
- Mediation
- Arbitration
- Independent Expert Determination
- Adjudication
- Early neutural evaluation
What is mediation?
Use of neutural mediator to facilitate discussions with no decision making authority.
Confidential and informal.
Normally ‘without prejudice’.
What is arbitration?
Quasi-judge role in accordance with the Arbitration Act 1996.
Parties bound by decision.
Arbitrators can order court decision and have specialist knowledge.
Surveyors can act as arbitrators having passed Chartered Institute or Arbitrator exams.
What are Independent Expert Determinations?
Expert appointed by parties (or by RICS Dispute Resolution Service) to investigate - expert in technical issues but not law.
Can use own opinion or evidence to decide.
Parties bound by decision.
Cheaper than litigation or arbitration.
What is adjudication?
Adjudication under Housing Grants, Construction and Regeneration Act 1996 (HGRCA), as amended.
Uses own knowledge to reach legally binding decision in a contractural process.
Strict 28-day timescale imposed by legislation.
Common for construction payment disputes.
Cheaper than litigation or arbitration.
What is Early Neutral Evaluation?
Independent person, experince in subject, investigates, and gives non-binding opinion.
Why is negotiation important?
It is the process whereby the parties work out between themselves how to resolve any issues that have arisen.
Power to settle disputes rests with the parties.
Cheapest form of dispute resolution.
In event of failure to agree, all other dispute resolution procedures are available.
Generally non-binding but contract can be produced out of agreement.
What is arbitration?
Process of bringing dispute in front of third party for resolution - parties hand over their dispute to arbitrator.
Contract must contain written agreement to arbitrate.
Generally cheaper than litigatation but still expensive.
