Level 1 - Conflict avoidance Flashcards
Under JCT how long does an adjudicator have to make his award?
• 28 days from issue of the referral notice, but this can be extended to 42 if both parties agree.
How do you avoid conflict on a project?
- Firstly, ensure that the tender information is clear, concise when tendering the project. i.e. a clear scope of works.
- If there is a dispute, use a people approach first and try to negotiate an agreement before going legal.
- As a last resort you should go legal.
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.
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 Adjudication. o Arbitration. o Litigation.
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).
What Dispute Resolution method is named in your contract?
- JCT = Adjudication.
- NEC = Adjudication.
- NFDC = Ajudication
What do you understand by Statutory?
• Statutory Law (Statue Law) is set down by legislate.
Talk me through how you would go about negotiating something?
- Firstly I would prepare, as understanding you points fully is critical.
- Secondly I would pre-determine what I can afford to give away, know my bottom line.
- Focus on the bigger picture, don’t get stuck on one item.
- Try to negotiate a win/win situation.
- Never accept the first offer.
- Finally, I would negotiate the small deals before the big ones.
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.
What is Litigation?
• Litigation is the process of taking legal action, i.e. in the construction industry, it will typically be taken to the Construction and Technology Court.
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.
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 hen 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.
How do you prepare for a negotiation?
- I will always familiarise myself before the negotiation with what is being negotiated.
- This will allow me to better understand my own argument, help me to pre-empt their argument/responses and allow me to better portray my point.
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 Massive jobs.
Once in a Final Account negotiation, how do you proceed to agree the Final Account.
- Start by negotiating and agreeing the smaller items first, adopting the collaborative approach to negotiation, to try and satisfy both parties interests.
- Following this move onto the larger more disputed items, which I presented my backup information for, and further negotiated a win/win situation for both myself and the client.
- Subsequent to the meeting, I issue a formal email, detailing the extent of what had been confirmed, such as the prices for the variations, and the Final Account Figure.
