Conflict Avoidance, Management & Dispute Resolution Procedures Flashcards
What is a conflict?
Where independance and impartiality is compromised
What is the difference between partnering and alliancing?
Alliancing involves a formal contract in which the parties undertake to act in the best interests of the project. Partnering is where the undertaking to act in such manner is purely voluntary
By doing either it builds cooperation between project participants for team working, problem solving and an emphasis on project delivery
What are the three pillars of dispute resolution?
Negotiation (neutral fact finding)- parties try to resolve it among themselves
Mediation (Conciliation)- 3rd party intervention. No binding decision imposed on parties
Adjudication (litigation or arbitration)- 3rd party intervention who can impose a binding decision
In what ways can conflict be avoided?
Good management
Clear contract documentation
Partnering and alliancing
Good project/client management
Record keeping
Regular reporting and proactivity
What is your company’s CHP?
*Complaints must be made in writing
*CHP must be issued when the complain is made
*Details of Complaints Handling Officer must be stated in CHP
*Employee must report the complaints to CHO
*Complaint must be acknowledged within 7 days and investigated within 28 days
ADR: if the complainant isn’t happy with the investigation results, they can revert to a redress scheme
What is Alternative Dispute Resolution (ADR)?
Processes that are alternative to traditional binding dispute resolution procedures. Actions and processes taken to resolve contractual disagreements between parties.
ADR procedures are:
Negotiation
Mediation
Conciliation
Formal methods of dispute resolution:
Adjudication
Arbitration
Litigation
Why might you prefer ADR over litigation?
Advantages of ADR over litigation:
*Usually cheaper
*More flexible
*Faster
*Less stressful
Disadvantages of ADR over litigation:
*If unsuccessful it can delay court proceedings
*Not legally binding (except arbitration)
*All parties MUST agree to use ADR
*ADR does not guarantee a resolution
*An ineffective third party can hinder the resolution
What is mediation?
A form of ADR
Relies on bringing an impartial 3rd party to mediate and guide a decision
Tries to encourage parties to come together to reach an agreement (as opposed to acting as a messenger)
What is conciliation?
Dispute resolution process
Similar to mediation- third party called in
Conciliator has no authority to seek advice or call a witness
Conciliator acts as a messenger and to encourage diplomacy
What is negotiation?
Where the parties reach an agreement through informal or facilitated discussions
Both parties agree to settle the dispute and agree to be bound by the settlement
What is adjudication?
Statutory form of dispute resolution available in the UK (made available in The Construction Act 1996)
Relies on an independent third party who considers the claims of both sides
Adjudicator makes a binding decision which can be appealed either through litigation or arbitration
Decision needs to be made within 28 days (advantage)
What is the difference between arbitration and litigation?
Arbitration:
*Governed by arbitration act 1996
*Must be a written agreement between both parties to allow arbitration
*Formal submissions by both parties, expert advice, hearings and a decision by the arbitrator
*Private process
Litigation:
*Differs in that proceedings are held in court
*Public process that follows civil procedures
*Has high costs but can deal with multi-party disputes and civil procedure rules which aim for accessibility, speed and efficiency
What is the adjudication process?
*Notification of adjudication from one party to another
*From receipt of mitigation, parties have up to 7 days to appoint an adjudicator
*Adjudicator has to review cases from both sides and issue a decision within 28 days
*Adjudicator can’t award costs unless parties agree to grant him power to do so
What is a dispute board?
A group that is assigned to a project from inception
A preventative form of dispute resolution rather than reactive
They try to identify where disputes may arise and take steps to ensure it doesn’t happen
What is the TCC?
Technology and Construction Court. Part of the High Court. They handle disputes about buildings, engineering and surveying
