Conflict Managment And Dispute Resolution Flashcards
Common causes of dispute
Unclear brief
Poor communication
Relationship breakdown
Poor reporting
How to avoid disputes
Clear communication
Good relationships
Roles / responsibilities
Good reporting lines
Risk management
Early warning systems
Can conflict be good
Not really - creative tension can be good to test design though
Theories of negotiation
Gather info - establish parameters - find common goal - find win win - closure
Alternative dispute resolution
Provided in all standard forms of construction Contract
Faster and more economical than formal dispute.
Negotiation - both parties talk to each other try to resolve
Mediation - an independent 3rd party e.g CEDR is agreed to settle the issue.
Conciliation - very similar to mediation, however the conciliator will usually propose a solution
Statutory dispute regulation
Litigation - through the court system
Adjudication - all have right to this through HCGA 1996
Contractual
Arbitration- very similar to litigation but not involving court system Adjudication
Consensual
Negotiation ( recognised within JCT)
Mediation
Adjudication rules
Notice of dispute issued by claimant
Adjudicator appointed within 7 days
Adjudicator has 28 days from issue of referral evidence
Decision is binding on parties and usually enforceable by the courts
Arbitration
Formal process of dispute resolution mirrors litigation governed by the arbitration act of 96
An impartial 3rd party will make the decision which is legally binding
Limited rights of appeal only if an error has taken place
Requires both parties to sign an arbitration clause or agreement
Differences arb and aju
Adjudication is not as formal as arb which is similar to litigation
Adjudication can be appealed more easily cannot be enforced without a court judgment
Adjudication automatically applies to all construction contracts
Arbitration requires both parties to sign up to it
Benefits of adju
Faster - arbitrators typically take 45 days after closing proceedings
Arbitration is far more formal with strict rules of evidence
Adjudication allows work to continue whilst the two parties resolve conflict - maintain cash flow for contractor
When is a surveyor used as an expert witness
Someone with specialist knowledge who is appointed by a party within a dispute in order to give an opinion to the tribunal
Has a duty to remain impartial. And act without bias
If appointed a wxpert witness Must
Advise client that the RICS practice note applies
Supply them with the RICS expert witness guide
State that usual complaints handling procedure won’t apply as their duty is to be impartial not act for client
Check there are no conflict of interests
What is a surveyor advocate
Appointed by a party to put forward clients case
Advocate for client - must act in clients best interest should advance their clients interest through the proper means
