Conflict Avoidance, Management & Dispute Resolution Procedures

Question 1

Can you explain the CPD you have undertaken relevant to common causes of conflicts and disputes?

Answer 1

• DeLever APC Roadshow webinar, focusing on mitigating disputes by establishing clear client briefs.
• Private reading around conflicts of interest.

Question 2

What is alternative dispute resolution (ADR) and what are the benefits of using it over litigation?

Answer 2

• Alternative dispute resolution (ADR) is the term used to describe ways of resolving a dispute without having to go to court (litigation).
• There are many different forms of ADR, but the one thing they have in common is that they all have the potential to resolve a dispute without any court involvement. This is why it is referred to as ‘alternative’ – it’s an alternative to litigation (settling in a court of law).
• Utilising ADR is generally quicker, cheaper and less formal than litigation and keeps disputes private.

Question 3

How does ADR work?

Answer 3

The exact process will depend on the type of ADR chosen, but typically it will involve an impartial professional – such as a surveyor, lawyer or other technical specialist – who is tasked with resolving the issue between the parties. This will be done either by:

• examining evidence submitted by the parties to the dispute, judging whose is the most persuasive and issuing a decision – as in arbitration, adjudication or expert determination, or
• facilitating discussions between the parties so that they can come to a mutually acceptable agreement – as in mediation.

Question 4

Can you outline some of the common types of ADR?

Answer 4

• Adjudication
• Mediation
• Arbitration
• Expert determination

Question 5

What is adjudication?

Answer 5

• Established by the Housing, Grants, Construction and Regeneration Act 1996 (the Construction Act).
• Allows for any party to a construction contract to refer any dispute to an independent adjudicator to make a decision on behalf of both parties.
• A binding decision will be made by the adjudicator within 28 days, which can be appealed ether by arbitration or litigation.
• Does not apply to a ‘residential occupier’ (a person who is living in a property).
• The aim of adjudication is to resolve the dispute quickly, fairly and cost-effectively. The Construction Act outlines a 28-day procedure for adjudication, although this can be extended for another 14 days with the agreement of the party that started the procedure, and even longer if both parties agree.

Question 6

What is mediation?

Answer 6

• Appointment of an independent mediator to encourage the disputing parties to come together to reach a mutual agreement.
• The mediator does not just act as a messenger, which is the key difference between mediation and conciliation.

Question 7

What is arbitration?

Answer 7

Both disputing parties agree for a binding decision to be made by an independent arbitrator (or a panel of arbitrators). The process is formal, similar to court proceedings – but, unlike open court, it is private and confidential.

Question 8

What is expert determination?

Answer 8

• A private process where an independent technical expert is appointed to conduct their own investigation and reach a decision on the dispute.
• Often used when the dispute focuses on a technical issue rather than a legal one. The technical expert will be required to use their expertise, knowledge and experience to come to a decision.
• The decision can be binding or non-binding.

Question 9

Under what legislation does arbitration fall under?

Answer 9

Arbitration Act 1996

Question 10

What are some of the key differences between adjudication and arbitration?

Answer 10

• Adjudication is a much quicker process (generally up to 28 days)
• Arbitration is a more in depth form of ADR and closer resembles litigation
• Adjudication can be appealed and escalated to arbitration or litigation.

Question 11

What are the different stages of adjudication?

Answer 11

1 - Notice of adjudication

2 - selection and appointment of the adjudicator

3 - referral notice

4 - response to referral notice

5 - adjudicator’s decision (decision made based on all documentation and supplementary information provided by the disputing parties)

Question 12

Is adjudication binding?

Answer 12

Yes, unless and until the dispute is determined by arbitration, court proceedings or an agreement by the parties.

Question 13

How does adjudication differ to arbitration and litigation regarding awarding of costs?

Answer 13

• The adjudicator does not have the power to award costs
• each party would be their own costs for the adjudication process.