M - Conflict Avoidance Flashcards
You’ve mentioned the Technology and Construction court? What is this and what is their role?
- Handles disputes about buildings, engineering and surveying
- Does not normally handle cases less than £250k unless good reason
Can you identify some of the key principles of adjudication?
- Type of ADR
- Objective to provide fast working solution to an issue
PROCESS
- Party serves notice of its intention to refer to dispute by adjudication
- Within 7 days of that notice, they must also serve their Referral which contains detailed explanation on the claim
- Within the same 7 days they must also secure appointment of an adjudicator
- Adjudicator will then set out timetable and make decision within 28 days of Referral
Why is conflict avoidance important?
- Can lead to deterioration of relationships
- Breakdown of trust
- Delays
- Additional cost
Can you name the various methods of ADR?
- Negotiation
- Mediation
- Conciliation
- Adjudication
What is the difference between mediation and conciliation?
Conciliators role is to act primarily as messenger and to encourage diplomacy
Mediator encourages the coming together of parties to facilitate a decision
What does the construction act say about adjudication?
Everyone is entitled to it, whether or not it is stated within the contract.
Which court would construction disputes be held in?
Technology and Construction Court if more than £250k, complex (adjudication or arbitration)
Local county court for below
What are the different types of dispute resolution
Negotiation - Direct communication between parties to reach an agreement. Often used informally or through lawyers.
Mediation - Voluntary process, neutral 3rd party assists parties reaching acceptable solution, encourages open communication
Conciliation - Like mediation but more active role, focuses in finding common ground
Arbitration - Formal process, involves impartial arbitrator who makes a binding decision that resolves the dispute
Expert Determination - Involves an independent expert evaluating technical or factual issues. The expert’s decision is binding
Adjudication - Formal process, adjudicator evaluates evidence, hears arguments, and issues a decision.
Litigation - Formal legal action, It involves presenting evidence, arguments, and legal claims before a judge or jury. The court makes a binding decision based on the law and facts presented.
What is Arbitration? and Pros and Cons
- Essentially lawsuit without court involvement
- Parties agreement gives arbitrator power to issue decision
- Decision is legally binding
Pros
- Private
- Faster than litigation
- Parties can agree on arbitrator
Cons
- Parties must bear costs
- Limited appeal rights
- Can be expensive if matter is complicated (arbitrator fees)
What is Litigation? Pros and Cons
- Involves parties commencing claim in court
- Nature, complexity and value of dispute will determine which court will hear dispute
Pros
- Judges can compel parties to comply with time frames
- There are defined rights of appeal in cases where errors of fact or law made
Cons
- Potentially greater cost if dispute is not well managed
- Potentially longer period to get judgement
- Proceedings in public
How does the JCT deal with ADR?
Provides nominated parties to direct notices towards
Why might a Client not want litigation within their contract?
They may not want details of the project or any dispute to be public
How would you prepare for a negotiation
- Understand goals
- Research and gather info
- Plan strategy
- Consider timing
- Practice
How do you avoid conflict
Being transparent with contractors
Ensuring there is no ambiguity with communication
Ensure I am factual and clear with any statements I make when putting the client’s case across
