Dispute Resolution

Question 1

What is ADR?

Answer 1

Alternative Dispute Resolution - a way of avoiding litigation resolution procedures and arbitration

Question 2

What guidance note covers conflict avoidance?

Answer 2

Conflict Avoidance and Dispute resolution in construction GN 2012

Question 3

What are the three distinct dispute resolution techniques?

Answer 3

1 - Negotiation - between the two parties
2 - Mediation or conciliation - Non binding 3rd party decision
3 - Adjudicative process - Binding decision by a 3rd party

Question 4

What are the different types of ADR?

Answer 4

Negotiation
Mediation
Arbitration
Independent Expert witness
Adjudication

Question 5

What is arbitration?

Answer 5

It is the most formal of the three alternative procedures. It works very much like litigation (it is normal for parties to be legally represented). It is not necessarily quicker or cheaper than litigation and involves much of the same procedure (the production of statements of case, written witness evidence etc.). The main differences are that it is conducted in private, that the parties are free to agree procedural rules between themselves, and that the tribunal consists of arbitrators chosen (and employed) by the parties themselves. Arbitration has a statutory basis under the Arbitration Act 1996, which makes the decisions of tribunals (known as ‘awards’) enforceable in the courts.

The arbitrator can award costs which are recoverable, reasonable and proportionate

Question 6

What is Adjudication?

Answer 6

is a more formal mechanism for dispute resolution that is designed to be quicker and a cheaper than arbitration or litigation. A third party adjudicator, usually a technical expert in the relevant field, decides the (generally factual) issues between the parties.

Question 7

What are the differences between Arbitration and Adjudication

Answer 7

Arbitration
- Governed by Arbitration Act 1996
- May be used as an appeal process
- Similar to court proceedings
- If parties do not agree that decision is subject to appeal then the decision is binding
- Operates outside of the normal court process by which a third party reaches a decision that is binding on both parties.
- Less formal and happen in private and decisions are binding on the parties. The winning party can apply to the high court for permission to enforce the arbitration award as if it were a court judgment (Arbitration act 1996 s66)
Uses law to come to decision

Adjudication:
- Generally used in the first instance.
- Faster- Can take 28 days and the decision is binding to the parties.
- More expensive due to how long it could take to settle matters
- Can be overturned by Arbitration or litigation
- Temporarily binding

Question 8

What are the benefits of ADR?

Answer 8

Speed
Informality
Greater Opportunity for negotiation
Cost- lest money spent on litigation
Quality of decision making, as made by surveyor rather than judge.
Confidentiality

Question 9

What is an Expert Witness?

Answer 9

Expert Witness appointed by two parties

Both parties are bound by decision.

Overriding duty as an expert witness is to the tribunal or court to which the expert evidence is given. This duty overrides any contractual duty to your client

Question 10

Can you describe the procedure for adjudication?

Answer 10

35 days in total 7 + 28

• Notice of adjudication
• adjudicator appointed within 7 days
• Referral notice must be issued within 7 days of the notice of adjudication
• Decision to be made within 28 days of the date of the referral notice.
• Decision binding, can be challenged in high courts of arbitration.

Question 11

What is the RICS dispute resolution?

Answer 11

RICS Dispute Resolution Service (DRS) is the world’s oldest and largest provider of alternative dispute resolution (ADR) services in the land, property and construction industries. Over the last four decades, DRS has appointed dispute resolvers in nearly a quarter of a million cases.

Question 12

What dispute resolution services do you have in your industry?

Answer 12

RICS Dispute resolution service

NHBC dispute resolution

The property Ombudsman

Question 13

What is the difference between arbitration and independent expert?

Answer 13

Arbitration - hearing and determine based on facts
Arbitration- can award costs. Arbitration Act 1996 and only relies on evidence presented. Can also call for correspondence to be turned over by each disputing party.

IE - can look at other evidence to form their own opinion
Independent expert- cant award cost and can rely on its own knowledge and expertise.

Question 14

What are the key facts on an independent expert?

Answer 14

Gets representation from parties and uses own their own information

they are determining a contractual proceeding

Governed by contract

Binding on parties as set out within the contract and no further recourse

Can be sued for negligence

Can not award costs

Both parties appoint or the RICS president

Gives an expert determination.

Question 15

What are the key facts on an Arbitration?

Answer 15

Arbirtation Act 1996

Consider evidence but can order a hearing to consider evidence further and can request discovery of evidence

Legal proceeding and governed by law

Enforceable by court but can be overturned by court of appeal on grounds of misconduct

Cannot be sued for negligence

Can award costs and is confidential

Will need to pass the Chartered Institute of Arbitrators Exams

Question 16

What are the key facts on an Adjudication?

Answer 16

Housing Grants, Construction regeneration Act 1996

must consider reps and uses own knowledge and the jurisdiction afforded by the relevant law

legal proceeding

governed by law

Enforceable but subject to arbitration or litigation

Can be sued for negligence

Can not award costs

Question 17

How do you avoid conflict?

Answer 17

Good management: A surveyor who proactively manages a project for which he or she is responsible or the duties that they have to their client in respect of the appointment is an excellent starting point for the avoidance of disputes.
*Clear contract documentation: Many disputes arise from ambiguities in contract documentation or argument as to whether there is a contract at all. Good documentation means capturing the specific details of the project and addressing the particular circumstances and risks of that project.
*Partnering and alliancing: Building co-operation between the project participants in order to foster team working, problem solving and an emphasis on project delivery can assist in the avoidance of disputes.
*Good project management: Means proactively managing all aspects of time, money and risk associated with the project. This involves often addressing some of the most difficult issues. Simply allocating responsibility for any and all items to others is never adequate.
*Good client management: A good understanding of the client’s objectives and the client’s approach to risk is also extremely valuable, as will be maintaining good lines of communication with the client.
*Good constructor management: In terms of conflict avoidance, this means having an objective understanding of the project, the contract and the programme of works. Problems and delay need to be dealt with at the time in a positive and objective manner.
*Good design team management: The provision of information within the design team and from the design team to the constructor is also crucial.
*Good payment practice: The design team and the constructor rely upon cash flow.
*Record keeping: Many disputes can be resolved by retrospectively considering records that have been kept during a project.
*Regular reporting and proactivity: The regular monitoring of cost, progress and quality is important for the success of any project.

Question 18

What is a Chinese Wall?

Answer 18

describes a virtual barrier intended to block the exchange of information between departments if it might result in business activities that are ethically or legally questionable. Chinese walls are used to describe situations where there is a need to maintain confidentiality in order to prevent conflicts of interest.