Conflict avoidance, managment and dispute resolution procedures Flashcards
What did you learn form the RICS guidance note on Conflict Avoidance and Dispute Resolution in Construction?
- Avoiding conflict in the first instance is best practice.
- Broadly sperates dispute resolution into three categories: Negotiation, Mediation and Adjudication
How can conflict be avoided in the first place?
- Setting clear expectations and formally assigning stakeholder roles and responsabilities from the onset (tender and contract)
- Effective and continuous communication
- Good documentation in writing
- Follow RICS standards, professional statements and guidance
If conflict occurs, how do you deal with it initially?
- Don’t ignire the issue and allow it to develop
- Openly discuss the issue with the all parties and try to fund a resoltion through communication and negotiation
- Where possible, conduct meetings face to face
What could indicate the sucess of a final account negotiation?
- Both parties come away happy.
- Final costs are within the client’s budget
- The negotiation is resolved in a timely fashion
What are the main causes of dispute?
- Commercial considerations
- Poor, missing or ambiguous documentation/specification
- Under-resourced teams
- Time pressures
- Poorly defined/communicated scope of services or project roles and responsibilities
- Bad communication
Provide some examples of dispute resolution
- Negotiation; the process of compromising or agreeing between two parties with opoosing opinions without external involvement
- Mediation; The use of a third party to faciliate a negotiation, the third party does not award a winning party and the decision is non binding.
- Adjudication; A process where an independant party assess and provides a verdict on a dispute whic is binding. Introduced to try and speed up dispute resolution without the need of the courts.
What is the dofference between mediation and conciliation?
In mediation the mediator acts a s afacilitator who helps parties reach a resolution.
In conciliation the facilitator plays a more active role and offers suggestions/advie to help resolve a dispute. Their recomendations can become binding if not further disputed by either party.
Can you explain the timeframes involved with adjudication?
- First a party must serve notice to the opposing party of their intention to refer a dispute to adjudication
- Within 7 days of the notice the referring party must serve its referral and also secure an appointment of the adjudicator or body names in the contract
- The referral must contain a detailed explination of the referring party’s claim including any supporting documentation
- Follwoing their appointment the adjudicator will issue a timetable whcih will usually involve the other party being allowed to respond. There is no set timeframe for the response but 14 days is usal practice.
- The adjudicator must make his decision within 28 days of the referral. This can be extending to 42 days upon mutual agreement of both parties.
Can adjudication be written out of a building contract?
In short, yes it can as a building contract can be amended. However, regardless of this adjudication is a legal right in relation to construction contracts enabled by legislation known as the Construction Act.
What is Arbitration?
- Arbitration is essentially a lawsuit without court involvement.
- The aprties agree wither through the contract or subsequent agreement to submit their dispute to arbitration rather than the court
- The arbitrator’s decision is legally binding
What are the advantages and disadvantages of arbitration?
Advantages include:
- The process is private with no public record
- It is relatively quite in comparison to litigation
- The aprties can agree on an arbitrator with suitable expertise and experience
- The decison can be enforced a s ajudgement of the court
Disadvantages include:
- No right to appeal
- The cost is bourne by both parties and smaller disputes may not be ecomomical to pursue in this manner
What is litigation?
Involves bring a claim in the civil courts
What are the advantages and disadvantages of litigation?
Advantages include:
- Adherence to timeframes with penalties imposed for non-compliance
- Judges have powers to grant interim relief to protect a parties postion
- There are defined rights of appeal where errors of fact are made
Disadvantages include:
- Potentially greater/increased costs if disputes are not well managed
- Longer period of time to resolution
- Hearings generally conducted in public
- Judgement will be subject to appeal.
Can you provide an example of when you have practiced conflict avoidance on one of your projects?
On Bishopsgate House I avoided conflict by negotiating a high value variation on ASHP’s where both parties accepted a position of compromise.
What is a Scott Schedule?
A Scott Schedule is a document used in court proceedings to clearly outline the allegations in dispute
