Conflict Avoidance, Management & Dispute Resolution

Question 1

Name some formal methods of dispute resolution?

Answer 1

NAMAL
- Negotiation
- Arbitration.
- Mediation
- Adjudication.
- Litigation.

Question 2

What would your considerations be prior to selecting a form of dispute resolution?

Answer 2

• The cost of dispute resolution in proportion to the claim being sought.
• The timescales involved.
• The impact on business relationships and reputation

Question 3

What is Mediation?

Answer 3

• This is an alternative form of dispute resolution and relies on bringing in an impartial third party to mediate and guide a decision.
• The mediator tries to encourage a coming together of parties in order to facilitate a decision

Question 4

What is dispute resolution?

Answer 4

• Actions and processes taken to resolve contractual disagreements between parties.

Question 5

What is negotiation?

Answer 5

• Negotiation is where the parties reach an agreement through an informal or private discussion

Question 6

What could indicate the success of a negotiation on a final account?

Answer 6

• Both parties are satisfied with the outcome and feel that a fair and reasonable compromise was reached.

Question 7

What is adjudication?

Answer 7

• Adjudication relies on an independent third party who considers the claims of both parties.
• A binding decision is made by the adjudicator which can be appealed either through litigation or arbitration.
• It has the advantage of being time sensitive with a decision being made within 28 days.

Question 8

What enforces the requirement for a building contract
to contain provisions for adjudication?

Answer 8

• The Housing grants, Construction and Regeneration Act 1996 (Construction Act).

Question 9

Which contracts does adjudication apply to?

Answer 9

• It applies to all construction contracts entered into after the act commenced within England, Scotland and Wales

Question 10

What if a building contract does not contain provisions for adjudication?

Answer 10

• Parties still have the statutory right to adjudication assuming the contract qualifies under the construction act.

Question 11

Please explain your understanding of the arbitration process?

Answer 11

• Arbitration is a procedure for the resolution of disputes which is under the control of the parties.
• The proceedings are undertaken in a private setting meaning the reputations of both parties can be preserved to an extent.

Question 12

Please highlight the key points in RICS Guidance Note on Conflict Avoidance and Dispute Resolution in Construction?

Answer 12

The guidance note hightlights 3 different levels including:

• General Principles (Dispute resolution techniques)
• Practical application (Conflict avoidance)
• Practical considerations (dispute escalation clauses)

Question 13

what were the 2011 amendments to the Housing Grants Construction and Regenerations Act 1996?

Answer 13

• The dates for payments must be set out in the contract.
• The client must issue a payment notice within five days of the date for payment.
• The client must issue a pay less notice if they intend to pay less than the amount set out in the payment notice.

Question 14

list the key principles of adjudication?

Answer 14

Key principles include:

• speed, fairness, and enforceability.
• Adjudicators must be impartial, with a duty to provide reasoned decisions.
• Parties must abide by decisions, with the process focused on maintaining project progress and cash flow while addressing disputes efficiently.

Question 15

what were the key takeaways from RGs CPD sessions on dispute resolution methods in construction?

Answer 15

• ADR provides alternatives to litigation,
• saving time and costs.
• A neutral third party assists in resolving disputes.
• Outcomes in ADR are often more flexible and collaborative.
• Confidentiality and enforceability vary among methods.

Question 16

How did you avoid conflict on your projects?

Answer 16

Collaborative working/building relationships

Question 17

ADR within contracts you have worked with?

Answer 17

Mediation/Adjudication/Arbitration

Question 18

Key rights were set out by the (HGCRA) Construction Act of 1996?

Answer 18

• The right to be paid in interim, periodic or stage payments if project was over 45 days.
• The right to suspend performance for non-payment.
• The right to adjudication.
• The right to be informed of the amount due, or any amounts to be withheld.

Question 19

What’s the difference between arbitration and adjudication?

Answer 19

Speed - Adjudication is a quick process, with an adjudicator required to make a decision within 28 days. Arbitration can take up to 45 days, but may be longer or shorter depending on the circumstances.

Complexity - Adjudication is typically used for straightforward disputes, while arbitration is better suited for more complex disputes.

Binding - Adjudication decisions are temporarily binding, while arbitration awards are binding and enforceable in court.

Confidentiality - Adjudicator decisions are rarely made public, and the parties can enter into a confidentiality agreement. Arbitration may become public if there is an appeal.

Process - Adjudication involves a quick resolution, often based on a written record of both sides’ arguments. Arbitration involves a more detailed process, including a hearing of evidence and witnesses.