Dispute Avoidance & Resolution

Question 1

What are the ways to not have a dispute?

Answer 1

1. Prevent
2. Resolve

Question 2

What is the best way to prevent disputes?

Answer 2

Having a clear contract with no ambiguity in it and tried case law is a great way to avoid dispute

• Good proactive management
• Clear contract documentation
• Partnering and alliancing – good relationships
• Good client management
• Good project understanding
• Proper payment practices – don’t set bad presidents
• Record Keeping
• Regular reporting

Question 3

Do you need to have a dispute resolution proces?

Answer 3

Yes, all construction contracts must have a DPR acording to

The Housing grants, Construction and Regeneration Act 1996

Question 4

What legislation is relevant to dispute resolution process in construction contracts?

Answer 4

The Housing grants, Construction and Regeneration Act 1996

Question 5

What are the 3 pillars of dispute resolution?

Answer 5

1. Negotiation
2. Mediation
3. Adjudication

Question 6

What is meant by negotiation when talking about DPR?

Answer 6

Negotiation: The parties start an informal process; project seniors will likely come together with mind to agree. This will likely be the start of any DRP.

Question 7

What is meant by Mediation when talking about DPR?

Answer 7

Mediation: A dialouge which includes a third party who can help steer and steady conversation - the mediator will aim to prompt an agreement, but cannot mandate one.

Question 8

What is meant by Adjudication when talking about DPR?

Answer 8

Adjudication: A formal and binding DPR process - the process will involve a third party reveiwing the evidence and making an indipendent decisson

Question 9

What is Consiliation?

Answer 9

A form of mediation that is more focused on the third party creating a fair dialouge as oppose to ofering their own opinion

Question 10

What is Arbitration?

Answer 10

A heavy type of adjudication where the courts are unlikely to reject the outcome.

Question 11

What does ADR stand for?

Answer 11

Alternative Dispute Resolution

Question 12

What is traditional rispute resolution?

the alternative to ADR?

Answer 12

Litigation

Question 13

What is a Dispute Board?

Answer 13

An unbiased board of people who are appointed at the start of a project and are in charge of dealing with disputes as and when they arise.

Question 14

How do you know what the DRP is?

Answer 14

It will say in the contract

Question 15

Where is the DRP set out in the JCT?

Answer 15

Section 9 Settlement of Disputes

Question 16

What happens if a contract is silent on its DPR

Answer 16

The Scheme for Construction Contracts DRP will apply

Question 17

What DRP does JCT follow?

Answer 17

The one set out in The Scheme for Construction Contracts

Question 18

What is the benefit of ADR as opposed to Litigation

Answer 18

Flexabilty - cheaper, quicker and private

Question 19

What is the different between mediation and conciliation?

Answer 19

• Mediation attempts to bring parties together and agree based on a careful approach which best suits both parties.
• Conciliation doesn’t try to bring parties together and agrees through a third party acting as a broker.

Question 20

Can you explain in detail the difference between arbitration and litigation procedures?

Answer 20

• Arbitration: procedures governed by Arbitration Act 1996
• In order to arbitrate there must be an agreement by both parties.
• Parties have a wide degree of discretion as to way proceedings conducted.
• Procedure similar to litigation with formal submission by parties, expert evidence, hearings and decision by arbitrator
• Advantages are that it is a private process, parties have flexibility, arbitration awards generally easier to enforce
• 3 types: short hearing (1 month), documents only (1 month) and full procedure.
• Litigation: Presentation of arguments in court.
• Public process following Civil Procedure Rules
• Advantages: Parties do not pay for court or judge, process can deal with multi-party disputes, civil procedure rules aim for accessibility, speed and efficiency.