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APC 2023 > L2 - Conflict avoidance, management and dispute resolution procedures > Flashcards

L2 - Conflict avoidance, management and dispute resolution procedures Flashcards

1
Q

What is a conflict?

A

A dispute between parties.

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2
Q

When do disputes arise in your role? (3)

A

1) Commercial - payment, variations & final accounts.
2) Information - Unclear or conflicting information
3) Building Contract - Insufficient consideration paid to the agreed Contract

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3
Q

What can you do if negotiations break down? What are they? (3)

A

ADR - Alternative Dispute Resolution.
1) Negotiation
2) Mediation
3) Adjudication/ Arbitration/ Litigation

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4
Q

What do the RICS Rules of Conduct say about avoiding conflicts of interest?

A

Process in place to identify and avoid conflicts of interest. If one arises firms and members must not provide advice or services or could potentially arise.

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5
Q

Give examples of ways that conflict can be avoided. Why is good management important? (5)

A

1) Clear requirements within tender/ contract docs.
2) Continuous communication.
3) Put everything in writing.
4) Follow company procedures.
5) Follow RICS guidance/ statements/ standards.

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6
Q

What are the benefits of clear contract documentation? (3)

A

1) Understand obligations.
2) Reduce chance of disputes.
3) Prevent delays and disagreements.

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7
Q

Why is good project or instruction management important? (4)

A

1) Stick to timescales.
2) Enable agreements to be made.
3) Ensure agreements covered in writing.
4) Leave little room for ambiguity.

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8
Q

Give examples of good payment practices. How can good record keeping avoid conflict? (3)

A

1) Production of a payment schedule, clearly identifying the stages for payment.
2) Ensure the Client is aware of their obligations.
3) Aid with Contractor’s Cashflow.

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9
Q

What are the three pillars of dispute resolution?

A

1) Negotiation
2) Mediation
3) Adjudication/ Arbitration/ Litigation

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10
Q

How do mediation and conciliation differ? Why is this important to be aware of?

A

Mediation - the facilitator helps the parties to agree and leads the process.
Conciliation - the facilitator makes suggestions towards proposals and gives a recommendation which sets out their solution. If within one month neither party dissent to adjudication or arbitration, the agreement is binding.

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11
Q

What is Alternative Dispute Resolution (ADR)?

A

A process used to resolve a conflict, dispute or claim.

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12
Q

Why might you prefer to pursue ADR rather than litigation through the Courts? (3)

A

1) Less costly
2) Takes less time
3) Not conducted in public

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13
Q

What would you do if you identified a perceived/actual conflict of interest?

A

Inform the Client in writing I cannot continue unless:
- Parties can act impartially
- the Client approves the conflict handling process put in place (informed consent)

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14
Q

Can you tell me about any RICS guidance relating to conflicts of interest?

A

RICS Professional Statement - Conflict of Interest (Jan 2018)

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15
Q

Can you tell me about any recent RICS guidance relating to dual agency/double dipping?

A

Jan 2018 professional statement (RICS Law) released putting blanket ban on double dipping.

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16
Q

What is the difference between an arbitrator and an independent expert?

A

Arbitration - expert determines a decision.
Independent expert - relays their knowledge to the court in order to help them make a decision.

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17
Q

Can you tell me about mediation/conciliation/adjudication?

A

Mediation - process of a third party facilitates a discussion process, no recommendation or advice given.
Conciliation - process of a third party offering advice on solutions and makes a recommendation - but not a final decision.
Adjudication - process where a nominated person is acquired to make a decision on a Referred case.

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18
Q

What is the TCC and what is its role? (3)

A

Technology & Construction Court
Handles disputes about buildings, surveying and engineering.
Does not handles cases below £250k (unless specific reason).

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19
Q

What is the Construction Acts full name?

A

The Housing, Grants, Construction and Regeneration Act (HGCRA) 1996.

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20
Q

What does the HGCRA do?

A

1) Legislation applied to all Construction Contracts.
2) Ensures Adjudication and Arbitration are included as standard wording.

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21
Q

Why was the HGCRA brought in? (2)

A

Following Michael Latham’s report in the 80’s.
Highlighted the ineffective nature of the industry and recommended standardising construction contracts and introducing a quick form of dispute resolution; Adjudication.

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22
Q

Is there a sequence between Adjudication and Arbitration??

A

JCT - Either can be proceeded.
NEC - Adjudication comes before Arbitration.

23
Q

If you work with contracts, explain how dispute resolution is dealt with in a contract you have worked with.

A

JCT Contract deals with:
1) Negotiation/ Mediation - Supplemental Provisions
2) Adjudication
3) Arbitration

24
Q

What is a Dispute Adjudication Board (DAB)? How do these work?

A

Panel of 1-3 persons that assist contracted parties throughout a project to avoid, manage and resolve disputes.

25
Q

What are the relevant timescales for adjudication? (4) Which Act governs adjudication?

A

1) Raise Notice
2) Within 7 days issue Referral (details of claim) and appoint adjudicator (named in Contract).
3) Adjudicator sets out timetable including Referral response time.
4) Adjudicator to make their decision within 28 days of Referral issued.

HGCRA 1996.

26
Q

What is the basic principle of adjudication? What claims is adjudication appropriate for (4)?

A
  • Fair, quick and cost effective dispute resolution rather than arbitration and litigation
  • Interim payments, delays, defective works, and final accounts.
27
Q

Explain the various adjudication services provided by RICS (4).

A

Commercial
- Construction Adjudication - RICS will nominate an adjudicator who is an expert in the subject matter (£425 incl. VAT).
- Low Value Adjudication - the sum claimed is less than £50,000 and do not involve multiple or complex issues (£300 incl. VAT).
- Summary Adjudication - claims below £20,000. One A4 page of decision within 14 days. (£300 incl. VAT).

Consumer
- Homeowner Adjudication - decide the matter within 21 days (£144 incl. VAT).

28
Q

What is the role of RICS in dispute resolution?

A

Offers guidance and services in relation to adjudication.

29
Q

What RICS guidance are you aware of relating to dispute resolution, ADR or roles in dispute resolution?

A

Guidance Note - Conflict avoidance and dispute resolution in construction

30
Q

What is the difference between expert witness/advocate?

A

Expert witness - assist the courts with specialist knowledge, impartial and fair.
Advocate - argue and evidence against something that is not true.

31
Q

What are the differences between conflict avoidance and dispute resolution?

A

CA - Preventing a conflict from occurring, partnering (alliancing), good management, good record keeping, clear documentation.
DR - the problem solving once the dispute has arisen.

32
Q

Which dispute resolution procedures lead to a binding decision? (5)

A

Conciliation recommendation - one month after recommendation should neither party dissent or refer to adjudication or arbitration.
Expert determination.
Adjudication - unless acted impartially.
Arbitration.
Litigation - Civil court of law.

33
Q

Explain the RICS conflict avoidance pledge to me.

A

As per the RICS’ meaning: RICS develops and enforces leading international standards to protect consumers and businesses, ensuring the highest level of professionalism.

34
Q

How has dispute resolution in the property and construction industries been used effectively during Covid-19?

A

Adjudication has been used more than arbitration and litigation to resolve C19 claims quickly and ensure continued cashflow.

35
Q

What is partnering or alliancing?

A

The collaboration of parties for mutual benefits and to benefit the project. Used mainly on long Contracts. Used in the Rail Industry.

36
Q

What is partnering or alliancing?

A

The collaboration of parties for mutual benefits and to benefit the project. Used mainly on long Contracts. Used in the Rail Industry.

37
Q

How can good client management reduce conflict? (5)

A

1) Collaboration
2) Expectations
3) Clear documentation
4) Scope of service/ works
5) Weekly tasks

38
Q

What is the practice of dual agency/double dipping?

A

Acting for both seller and buyer - banned by RICS.

39
Q

What does the HGCRA do?

A

1) Legislation applied to all Construction Contracts.
2) Ensures Adjudication and Arbitration are included as standard wording.

40
Q

What is a Scott Schedule and when would one be used?

A

Sets out allegations during proceedings - used in court.

41
Q

If a Conflict occurs, how do you deal with it initially? (2)

A

1) Raise with all parties.
2) Try to resolve through communication and negotiation within 7 days whilst informing line manager and head of division.

42
Q

What is negotiation?

A

A process between parties to resolve issues that have arisen.

43
Q

What is expert determination? (4)

A

1) Informal form of Arbitration.
2) Refer issue to impartial third party (expert)
3) Technical disputes
4) Creates a binding decision.

44
Q

Can Adjudication timescales be extended?

A

28 days to 42 days upon agreement by both parties.

45
Q

Can you appeal adjudication?

A

No but can be taken to litigation (or arbitration if the contract allows)

46
Q

What is arbitration?

A

Law suit without court involvement.

47
Q

What are the differences between adjudication and arbitration? (2)

A

Adjudication:
- cannot award costs, only charge fees.
- takes no more than 28 days for a decision

Arbitration:
- award costs for legal fees
- can take months for a decision (driven by info received). Notice of arbitration issued, 30 days to respond. Then Arbitrator appointed to set timeframes and whether a hearing is required.

48
Q

What happens if the adjudicators decision is not followed up on?

A

Referred to TCC.

49
Q

What regime brought in by HGCRA 1996 enables continued cashflow?

A

Pay now, argue later.

50
Q

What are similarities between Adjudication and Arbitration?

A

1) Independent third party assess the outcome.
2) Both private - not public.

51
Q

What are similarities between Adjudication and Arbitration? (3)

A

1) Independent third party assess the outcome.
2) Both private - not public.
3) Both quicker than litigation.

52
Q

What is litigation?

A

Claim raised in a Civil court of Law.

53
Q

What are key elements of litigation? (3)

A

1) Timeframes and sanctions for not adhering to them set by judges.
2) Judges can order interim relief to protect a party’s position before final judgement.
3) Right to appeal where facts or law errors made.

54
Q

What are disadvantages of litigation?

A

1) High costs.
2) Potentially longer timeframe to obtain a judgement
3) Public.
4) Judgement subject to appeal.

APC 2023 (24 decks)

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