Conflict avoidance, managment and dispute resolution procedures

Question 1

What did you learn form the RICS guidance note on Conflict Avoidance and Dispute Resolution in Construction?

Answer 1

• Avoiding conflict in the first instance is best practice.
• Broadly sperates dispute resolution into three categories: Negotiation, Mediation and Adjudication

Question 2

Can can conflict be avoided in the first place?

Answer 2

• 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

Question 3

If conflict occurs, how do you deal with it initially?

Answer 3

• 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

Question 4

What could indicate the sucess of a final account negotiation?

Answer 4

• Both parties come away happy.
• Final costs are within the client’s budget
• The negotiation is resolved in a timely fashion

Question 5

What are the main causes of dispute?

Answer 5

• 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

Question 6

Provide some examples of dispute resolution

Answer 6

• 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.

Question 7

What is the dofference between mediation and conciliation?

Answer 7

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.

Question 8

Can you explain the timeframes involved with adjudication?

Answer 8

• 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.

Question 9

Can adjudication be written out of a building contract?

Answer 9

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.

Question 10

What is Arbitration?

Answer 10

• 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

Question 11

What are the advantages and disadvantages of arbitration?

Answer 11

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

Question 12

What is litigation?

Answer 12

Involves bring a claim in the civil courts

Question 13

What are the advantages and disadvantages of litigation?

Answer 13

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.