Dispute Resolution

Question 1

What guidance note is there for dispute resolution?

Answer 1

Conflict avoidance and dispute resolution in construction, 1st edition

Question 2

What is negotiation?

Answer 2

Discussions that end in an agreement.

Question 3

What is mediation?

Answer 3

A neutral third party acts as a mediator and works with both sides in the dispute to facilitate a resolution.
- Does not award, and is non-binding.

Question 4

What is concilation?

Answer 4

Operates in a smiliar way to mediation but the concilator takes more of a active role and has the power to suggest grounds for compromise or a settlement.

Question 5

What is expert witness?

Answer 5

Independent & unbiased opinion, provides advice on areas of dispute.
- Does not make a decision.

Question 6

What is expert determination?

Answer 6

Impartial third party, used for highly technical issues.
- Decision is binding and final.

Question 7

What is adjudication?

Answer 7

• Either party appoints an
  adjudicator by serving a Notice of Dispute. The adjudicator
  has 28 days from referral to issue a decision.
• Outcome is binding, unless challenged in court.
• Required under HGCRA.

Question 8

How does adjudication work?

Answer 8

1. One party requests appointment & services notice of dispute.
2. Adjudicator appointed within 7 days of notice.
3. Referral notice issued at end of 7 day notice.
4. Adjudicator has 28 days following referral notice to make a decision (can be extended by 14 days).

Question 9

What is arbitration?

Answer 9

• A private form of dispute resolution agreed by the parties in the contract.
• An arbitrator is appointed by the parties to make a binding decision from which there are very limited grounds of challenge.

Question 10

What is litigation?

Answer 10

Taking a cast to court.

Question 11

How may conflict be avoided?

Answer 11

• Record everything.
• Accurate specification.
• Provide a Terms of engagement & scope of service.
• Clearly set out all their documents.

Question 12

What are the 3 pillars of dispute resolution?

Answer 12

• Negotiation.
• Mediation.
• Adjudication.

Question 13

What is the role of the RICS in dispute resolution?

Answer 13

The RICS offers a dispute resolution service (DRS).
- DRS Panel of experts.
- Expert witness; mediators; arbitrators; adjudicators; dispute board members; independent expert and experts.

Question 14

What is the current professional statement for conflicts of interest?

Answer 14

RICS conflict of interest, 1st edition - professional statement

Question 15

What types of conflict are there?

Answer 15

• Party conflict
• Own interest
• Confidential information.

Question 16

How do you avoid conflicts in your day to day work?

Answer 16

I would undertake a conflict of interest check upon inception of an instruction, and throughout the instruction (as a conflict on interest can arise at any time).

Question 17

Can you proceed with an instruction if there is a conflict?

Answer 17

*If I was able to act impartially, I would inform the parties of the risk and ascertain Informed Consent.
*Set up an information barrier (if required).
*If I was not able to act impartially, then I would refer the client to the find a surveyor service on the RICS website.

Question 18

What would I do if a dispute arose during a contract between the contractor and client? How would I resolve this?

Answer 18

Engage in negotiations with all parties, if this doesn’t work and as it’s during the contract, to engage in Adjudication (as per the Housing Grants, Construction and Regeneration Act 1996).

Question 19

What are some common causes of dispute?

Answer 19

Those involving:
- Defects
- Payment issues
- Design issues
- Professional negligence.

Question 20

What is the purpose of ADR?

Answer 20

To avoid lengthy and expensive disputes, by avoiding litigation. Also to provide quick and easy remedies for disputes.