Dispute Resolution Flashcards
What guidance note is there for dispute resolution?
Conflict avoidance and dispute resolution in construction, 1st edition
What is negotiation?
Discussions that end in an agreement.
What is mediation?
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.
What is concilation?
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.
What is expert witness?
Independent & unbiased opinion, provides advice on areas of dispute.
- Does not make a decision.
What is expert determination?
Impartial third party, used for highly technical issues.
- Decision is binding and final.
What is adjudication?
- 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.
How does adjudication work?
- One party requests appointment & services notice of dispute.
- Adjudicator appointed within 7 days of notice.
- Referral notice issued at end of 7 day notice.
- Adjudicator has 28 days following referral notice to make a decision (can be extended by 14 days).
What is arbitration?
- 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.
What is litigation?
Taking a cast to court.
How may conflict be avoided?
- Record everything.
- Accurate specification.
- Provide a Terms of engagement & scope of service.
- Clearly set out all their documents.
What are the 3 pillars of dispute resolution?
- Negotiation.
- Mediation.
- Adjudication.
What is the role of the RICS in dispute resolution?
The RICS offers a dispute resolution service (DRS).
- DRS Panel of experts.
- Expert witness; mediators; arbitrators; adjudicators; dispute board members; independent expert and experts.
What is the current professional statement for conflicts of interest?
RICS conflict of interest, 1st edition - professional statement
What types of conflict are there?
- Party conflict
- Own interest
- Confidential information.
How do you avoid conflicts in your day to day work?
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).
Can you proceed with an instruction if there is a conflict?
*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.
What would I do if a dispute arose during a contract between the contractor and client? How would I resolve this?
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).
What are some common causes of dispute?
Those involving:
- Defects
- Payment issues
- Design issues
- Professional negligence.
What is the purpose of ADR?
To avoid lengthy and expensive disputes, by avoiding litigation. Also to provide quick and easy remedies for disputes.
