Level 1 - Conflict avoidance Flashcards
N2. How do you avoid conflict within FM?
- Ensure a robust contract is in place and clear KPIs
- Build strong, professional working relationships
- Good management and reporting
- Record keeping
N3. What is the difference between Mediation and Conciliation?
- Mediation is a voluntary procedure, which involves the appointment of a third party mediator, who will help to facilitate negotiations between parties. Them aim of mediation is to help the parties reach an amicable agreement.
- Conciliation is also a voluntary procedure, which involves the appointment of a third party Conciliator. The role of the conciliator is to also facilitate negations, however the Conciliator will create a settlement proposal.
N4. What is ADR?
• ADR stands for Alternative Dispute Resolution, and was introduced as part of the Civil Procedure Rules 1998. • These Alternative Dispute Resolution procedures are: o Negotiation. o Mediation. o Conciliation. o Expert determination o Adjudication. o Arbitration. o Litigation.
N5. What are the Civil Procedure Rules 1998?
• An improvement to the legal system, making it quicker, cheaper and easier to understand through the introduction of Alternative Dispute Resolution (ADR).
N6. What Dispute Resolution method is named in your contract?
- ESPO = Mediation
- NEC = Adjudication.
- JCT = Adjudication.
N7. . What do you understand by the term Statutory?
• Statutory Law (Statue Law) is set down by legislate.
N9. What is the Adjudication Process?
- Notification of Adjudication from one party to another.
- From receipt of notification, parties have up to 7 days to appoint the adjudicator.
- Adjudicator will review parties cases, and make their decision within 28 days. (This can be extended to 42 days)
- The adjudicator does not have the power to award costs, unless the parties agree to grant him this power.
N10. What is Litigation?
• Litigation is the process of taking legal action, i.e. in the construction industry, it will typically be taken to the Technology and Construction Court.
N11. What is Arbitration?
- The use of an Arbitrator to settle disputes.
* It is a private, judicial determination of a dispute by an independent third party.
N12. What is the Arbitration Process?
• The appointed Arbitration body must be notified, and they will appoint an Arbitrator.
• The main hearing will be held, whereby each side will present their version of the conflict, along with their evidence.
• The arbitrator will then base their decision on what they believe to be fair and just, as they are not required to follow the law or reasoning of earlier case decisions.
• It is very difficult to appeal an Arbitration, they can only be appealed if it can be proved that the arbitrator was:
o Corrupt.
o Bias.
o Arbitrator exceeded their power.
N14. What is a Dispute Board?
- A group that is assigned to a project from inception. They are more a preventative form of dispute resolution rather than reactive, as they will try to identify where disputes may arise, and takes steps to ensure they do not happen.
- Usually being used on large projects
6.1 Why can disputes occur?
- Poor performance of parties.
- Uncontrolled change.
- Complex contractual relationships / inadequate tender and contract documentation.
- Inability or reluctance to pay.
- Inappropriate procurement.
- Pressure to start on site before design and or contract finalised e.g. Letters of Intent (LOI)
6.3 What techniques are available to resolve disputes?
The 3 Pillars of Dispute Resolution (Professor Green of Boston University)
6.4 What are the 3 pillars of Dispute Resolution?
- Negotiation – problem solving efforts of the parties themselves.
- Mediation – 3rd party intervention makes a non-binding decision.
- An adjudicative process – final outcome determined by a 3rd party who’s decision is binding.
6.41 What is the difference between adjudication and arbitration?
- Arbitration - both sides agree to let an impartial third party, decide the case. The arbitrator’s decision (award), is legally binding and can be enforced through the courts. Normally, there is no appeal.
- Adjudication - the decision is the responsibility of a third party adjudicator selected by the parties to the dispute. Decisions are binding unless and until they are revised by subsequent arbitration or litigation. Adjudicators do not have powers to award costs.