Conflict Avoidance, Management & Dispute Resolution Procedures Flashcards
How to conflicts occur?
Conflicts occur when there is a failure to comply with a contractual obligation. Quite apart from someone fail to carry out an obligation, it can be because of differing interpretations of the meaning of the contract. This is common in both construction contracts and leases
How would you avoid a conflict in the first place?
- Good management; being proactive and raising issues early
- Clear contractual documents; avoid ambiguity
- Good payment practise
- Pro-activity
- Partnering; collaborative working, good working relationships
- Good record keeping
- Good client management; understand their objectives and approach to risk, communication
- Good contractor selection
- Regular reporting
- Good project management
- Good design management
Why would you consider an Alternative Dispute Resolution?
Some of the advantages may include:
- Speed
- Informality
- Opportunity for negotiation
- Cost
- Decision Maker (expert/surveyor)
- Confidentiality
Why would you consider negotiation as a dispute resolution?
Negotiation involves the parties agreeing a resolution between them. It is cheap, quick, and if agreed can be binding. It’s a win win, if the parties can agree to negotiate in good faith
What is involved in Mediation as a dispute resolution process?
Mediation is consensual, informal and confidential. A third party mediator is appointed by the parties, and they assist in the negotiation.
Can be evaluative, where the mediator gives an assessment on the legal strength of the arguments. Can be facilitative, where mediator only assists parties agree.
If agreed, and written down, can be binding
What is involved in Arbitration as a dispute resolution process?
Arbitration is dictated by the Arbitration Act 2010.
It is private and contractual. A third party Arbitrator (can be knowledgeable in field) is appointed, and they make a determination based on evidence and points of law. The aware is legally binding and there a limited appeal rights
What is involved in Expert Determination as a dispute resolution process?
An expert is appointed, and they use their own opinion and the evidence to come to a binding decision
What is involved in Adjudication as a dispute resolution procedure?
Adjudication is either contractual or statutory in set up. It requires the appointment of a third party adjudicator, who reviews the information, can use their own expertise to come to a conclusion. There are strict timescales, often 28 days from appointment. “Pay now, argue later” - the adjudicators award is binding unless overturned by arbitration or litigation
What does the use of an Ombudsman involve as a dispute resolution procedure?
Using an Ombudsman involves the use of an organisation to confidentially review, investigate and facilitate the resolution of a complaint. Strict timescales, - 6 weeks to review, then 28 days to reply. Financial awards available up to £25,000. Can then go to court if parties are unsatisfied
What are the advantages of going to Litigation?
- Courts are considered to provide the the highest quality decision making
- Precedent, is used and can be established, therefore possible protection for the future
- Judges have the power to provide interim relief to protect a party’s position prior to final judgement
- Defined and extensive rights of appeal
(Disadvantages - Public, Costly, Time Consuming, Subject to Appeal)
What is involved in the use of an Expert Witness?
Experts are brought into provide clarity on a technical point to help aid a court (or others) decision making. Expert witness much be IMPARTIAL, and will generally produce a report on the material facts for the courts.
An expert witness can now be sued for negligence, and RICS have updated their practise statement and provided an accreditation scheme in response the possibility of being liable
What are the main themes contained within the RICS Guidance Note on Conflicts of Interest and Dispute Resilution 2016?
The GN is mainly aimed at those appointed to act in a dispute. The main themes are independence and impartiality. Every dispute resolver should be, and be seen to be, impartial at the time of accepting an appointment and remain so throughout all proceedings
