lecture 14 Flashcards
is an unresolved claim.
It can result from the failure of one or more of the parties to a claim to reach an agreeable understanding and resolution of the issues therein.
Dispute
An example of a dispute is
- The Owner’s refusal of a time extension or cost
reimbursement - An A/E rejecting a liability issue
- A contractor rejecting liquidated damages for late
completion
The best resolution of a dispute is _________________.
dispute avoidance in
the first place.
often occur when the A/E’s or the initial
decision maker’s decision on a
claim is not accepted by one or both parties and the claim cannot be resolved through negotiation.
Disputes
A _____ may become a dispute no matter how
responsibly the parties attempt
to resolve it.
Each party may be convinced its position is correct and that there is no further room for compromise.
claim
In most cases, the failure to negotiate effectively is due to one or more of the participants failing to understand and accept the __________established by the contract documents.
rights, responsibilities,
and requirements
When attempts at reaching a mutually acceptable
settlement have been unsuccessful,
the parties are obligated under the conditions of the contract to use the specified method of dispute resolution indicated in the _________.
.
contract documents
_________states that if no resolution is reached after the initial decision maker’s decision, then either party can demand the other party file for mediation.
AIA Document A201
If the other party does not file for mediation
, then both parties ________ and any other dispute resolution method with respect to the initial decision.
waive mediation
require that the initial decision maker make a final determination on a claim and then notify the owner and contractor.
AIA standard general conditions
If there is disagreement with the determination, the appealing party may within a stipulated time period provide the other party with _________ of its demand for dispute resolution.
written notification
If the initial decision maker or A/E has failed to render a decision in the required time period, a demand for dispute resolution may be made by _______.
either party
AIA Document A201 stipulates that if the claim relates to a mechanic’s lien, ____________ may proceed in accordance with applicable law to comply with the lien notice or filing deadlines.
the party asserting such claim
ADR
Stands for Alternative Dispute Resolution methods.
Act as a substitute to litigation( as the traditional
dispute resolution method). Enables contract parties to seek faster, and usually less expensive methods to resolve their disputes.
Includes, but is not limited to one of the following:
1. Arbitration
2. Mediation
3. Early Neutral Evaluation (ENE)
4. Dispute Review Boards (DRB)
ADR
- Reduced timeto disposition
- Less costly discovery
- More effective case management
- Increased confidentiality
- Facilitation of early, direct communication and understanding among the parties of the essential issues on each side of the dispute.
- Preservation of ongoing party relations.
- Savings in trial expenses.
- Providing qualified, neutral experts to hear complex matters
.
Advantages of ADR
What should be considered before deciding wheter or not to use ADR?
- The cost of the process relative to the amount of the dispute
involved. - The importance of prompt resolution.
- Whether an informal or formal proceeding would be beneficial.
- Whether binding or non
-binding options should be pursued. - The desirability of establishing precedence
- Whether a transcript of proceedings should be made
- What role do the parties want the third neutral to play
may be defined as an arrangement or
procedure for settling disputes by obtaining the
judgment of selected impartial experts.
Arbitration
Arbitration is an alternative to litigation, and its purposes are:
- To obtain an early settlement of a dispute by avoiding the delay and costs of litigation.
- To obtain the judgment of a person or persons selected because of their objectivity, knowledge, and experience in the field of the dispute.
- To keep the hearings and evidence private
- To reach the settlement as economically as possible.
The decision reached at the end of the arbitration
process can be ___________ based on the arbitration terms of agreement.
binding or non-binding
•This process is provided for by statute in a number of states.
•The statutes establish the authority for an independent private party, usually a lawyer or retired judge, to be retained to decide the matter
.•Avenues of appeal are the same
as if the case was heard and decided in the judicial system.
•The advantages of this process are that cases can be resolved in less time, and persons better versed in construction and construction law can be selected to hear the case.
Judicial reference
is another alternative dispute resolution
method, where the disputing parties agree on selecting a go-between to facilitate the resolution of the dispute.
Mediation
unlike a judge or arbitrator, has no power to impose a solution on the parties. His or her sole function is to help the litigants resolve their problems consensually.
The mediator
The _____ job is to identify and narrow the issues and focus on each side’s underlying interests, convey messages between the parties, explore areas of agreement, and point out the consequences to the
parties of not settling.
mediator’s
offers a confidential, non
-binding conference where the parties and their counsel present the factual and legal basis of their case to one another and to an experienced, impartial expert in the subject matter of the case in an informal way.
This is a cost-effective substitution for formal discovery and
pretrial motions enabling the parties to communicate more directly.
The ENE program
Key aspects of ENE include:
a. Neutral evaluator identifies the primary issues of dispute, as well as areas of agreement.
b. Explores the possibility of settlement.
c. Assists the parties in formulating a discovery plan.
d. Provides an assessment of the relative strengths
and weaknesses of the parties’ positions and the value of the case.
is not an actual trial. It is a
structured process that allows the parties to present the necessary facts and elements of the claim and
the concepts of law applicable to the claim in a
compressed period of time.
•A neutral party hearing the case is normally a skilled legal practitioner who can render an
opinion based on established case law and the limits of the contract documents.
The mini-trial method
is one of the most successful ADR tools, during which each of the disputing project parties picks a board member, and these two members pick a third.
The Dispute Review Board (DRB)
When dealing with a Dispute Review Board, the Owner and the Contractor must approve each other’s ____________.
nominees and also the third party chosen by them.
There should be no individual communications between board members and employees of the Contractor or the Owner during the life of the
board, and all communications should be
handled by the _________.
board chairman
should be to meet periodically to review the construction work and be updated on any contract changes, problems, or possible disputes.
The policy of the board
During each meeting, the _______________ make joint presentation of the construction effort since last meeting.
project managers of the Owner and the Contractor
