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APC 2021 > M06 - Conflict Avoidance, Management and Dispute Resolution Procedures > Flashcards

M06 - Conflict Avoidance, Management and Dispute Resolution Procedures Flashcards

1
Q

What is an ADR (Alternative Dispute Resolution)

A
  • A form of dispute resolution that does not involve judicial proceedings
  • Action to resolve contractual disagreements between two or more parties
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2
Q

What is Mediation?

A
  • Voluntary procedure
  • Parties not obliged to accept terms of agreement
  • Mediator appointed
  • Mediator negotiates with parties separately to find compromise and settlement
  • If in agreement, a civil law contract is drawn up - both parties commit to it
  • Refusal to take part looked at negatively by courts
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3
Q

What is Adjudication?

A
  • Both parties have to agree to it
  • Adjudicator appointed by Adjudicating body - who is an expert witness
  • Advantages are relatively low cost & short resolution time (4-6 weeks)
  • Decision made by Adjudicator and is binding, unless revised by arbitration
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4
Q

What is Arbitration?

A
  • Both parties have to agree to it
  • 1 or more Arbitrators appointed by the disputing parties
  • It is a private procedure, the Arbitrators decision ‘the award’ is private
  • Advantages are privacy and the ability to appoint Arbitrator with technical knowledge, as opposed to a judge
  • Disadvantages are it can be expensive
  • Governed by the Arbitration Act
  • Decision is binding, unless revised by litigation, where Arbitrator has acted outside their powers
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5
Q

What is Litigation?

A
  • Formal legal proceedings
  • Advantages = Highest powers available to enforce decisions, sanctions etc
  • Disadvantages = cost, time, all information open to public, ability to appeal, Judge doesn’t have technical knowhow
  • Common for parties to reach settlement before trial
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6
Q

Differences between Adjudication and Arbitration?

A
  • Adjudication = Adjudicator appointed by Nominating Body. Decision is interim as can be escalated to Arbitration
  • Arbitration = Arbitrator appointed by disputing parties - Longer timescales
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7
Q

Differences between Arbitration and Litigation?

A
  • Parties appoint the Arbitrator (3rd party) to resolve dispute in private
  • Litigation is formal legal proceedings conducted in public = more expensive & time consuming
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8
Q

What are the timescales for an adjudication process?

A
  • Once the dispute is referred, an Adjudicator is appointed within 7 days
  • Decision is give within 28 days
  • Can be extended by 14 days if agreed by both parties
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9
Q

What are the contractual mechanisms available for dispute resolution under contracts you have been working with (NEC, JCT)?

A

Mediation, Adjudication, Arbitration

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10
Q

How have you implemented conflict avoidance procedures in contracts you have been involved with?

A

I have yet to be involved in a formal dispute resolution process, but frequently I am required to settle and agree valuations and final accounts with Contractors which requires negotiation and I do this through effective preparation, communication and behaving ethically

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11
Q

What in your opinion is the cause of most disputes?

A

Monetary, specification and programme disputes

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12
Q

What act is adjudication based on?

A

Housing Grants, Construction and Regeneration Act

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13
Q

Under JCT what are the ADR procedures that may be used?

A

1) Mediation
2) Adjudication
3) Arbitration

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14
Q

What is the default ADR in JCT?

A

Mediation

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15
Q

What is the default ADR in NEC3?

A

1st Step - Adjudication

2nd Step - Arbitration or Litigation

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16
Q

What could indicate the success of a negotiation on a final account?

A

Both parties come away happy, and costs agreed within cost report budgets

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17
Q

Why is adjudication (ADR) required in the contract?

A
  • The Housing Grants, Construction & Regeneration Act 1996 (more commonly known as the Construction Act) stipulates that it should
  • All construction contracts to allow for adjudication; Follow proper adjudication procedure
  • Any party permitted to refer dispute to adjudication
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18
Q

What if a contract does not have a provision for adjudication?

A
  • The parties have a statutory right to adjudication assuming that the contract qualifies under the Construction Act
  • If it doesn’t then the Scheme for Construction Contracts will apply
19
Q

Can you reject the decision from the adjudication process?

A

Yes and that party can proceed to whichever out of arbitration or litigation is detailed in the Contract particulars.

20
Q

Who appoints the adjudicator?

A

The adjudicator can either be named in the Contract particulars or nominated by the nominating body identified in the Contract particulars such as the RIBA and the RICS.

21
Q

What styles of conflict avoidance are you aware of?

A
  • Confronting: collaborative, confront issue rather than each other
  • Compromising: give and take
  • Smoothing; more accommodating than compromising, sacrifices made
  • Forcing; force view with no disregard to other view
  • Avoiding; postponing, temporary
22
Q

What is the differences between expert determination & mediation?

A
  • Expert determination is a form of alternative dispute resolution whereby the parties to a contract ask an independent expert to give a binding decision on a dispute. If the clause is drafted properly and it is used in the right circumstances expert determination can provide you with a quicker, cheaper and effective means of settling a dispute.
23
Q

Why would you choose litigation over arbitration?

A
  • If the other party is not voluntarily participating in the ADR process.
24
Q

Is adjudication compulsory?

A

Yes

25
Q

Do you think adjudication is cost effective?

A
  • It depends on the amount of the claim

- Absolutely, when compared against litigation.

26
Q

What law guarantees the right to adjudication?

A
  • The Local Democracy, Economic Development and Construction Act 2009
27
Q

Which high court enforces construction & litigation?

A
  • Technology and Construction Court (TCC)
28
Q

What does the JCT adopt as the go-to ADR method?

A
  • Serious consideration to Mediation
  • Adjudication
  • Then Arbitration
29
Q

What section of JCT focuses on ADR?

A
  • Section 9

- Article 7

30
Q

How do you avoid conflict?

A
  • Good management
  • Being proactive
  • Good record keeping
  • Partnering
31
Q

What is mediation?

A
  • Mediation is a completely voluntary and confidential form of Alternative Dispute Resolution (ADR). It is when an impartial person or mediator - trained in dealing with difficult discussions between 2 opposing sides - acts like a referee in a dispute.
  • Mediator doesn’t make a ruling, they facilitate communication
32
Q

What is the difference between mediation & conciliation?

A
  • In mediation, the mediator acts as a facilitator who helps the parties in agreeing. Conversely, in conciliation, the conciliator is more like an interventionist who provides probable solutions to the parties concerned, to settle disputes.
33
Q

What is adjudication?

A
  • Adjudication is a compulsory dispute resolution mechanism that applies to the UK’s construction industry.
  • Consensual agreement
  • Legally binding unless undone by arbitration & litigation.
34
Q

Is adjudication binding?

A
  • Yes, unless un-done by litigation of arbitration
  • Adjudication decisions are binding unless and until they are revised by arbitration or litigation.
  • Rarely overturned.
35
Q

What is arbitration?

A
  • Arbitration is an alternative to litigation for resolving construction industry disputes.
  • Consensual agreement
  • Arbitration Act 1996
36
Q

Is arbitration legally binding?

A
  • Arbitration is legally binding in the same way as a judgment would be.
37
Q

What are the timescales of adjudication/arbitration?

A
  • Adjudication: 28 days

- Arbitration: Can take months

38
Q

Can you extend adjudication?

A
  • Yes, by 14 days if requested by both parties or by the claimant.
39
Q

In JCT, if no adjudicator is named, who will act as adjudicator?

A

President or Vice President of:

  • Royal Institution of British Architects
  • Royal Institution of Chartered Surveyors
  • Association of Independent Construction Adjudicators
  • Chartered Institute of Arbitrators
40
Q

In JCT, if no arbitrator is named, who will act as arbitrator?

A

President or Vice President of:

  • Royal Institution of British Architects
  • Royal Institution of Chartered Surveyors
  • Chartered Institute of Arbitrators
41
Q

How does NEC deal with resolving disputes?

A
  • Option W1: Used when adjudication is the method of dispute resolution and the United Kingdom Housing Grants, Construction and Regeneration Act 1996 does not apply
  • Option W2: Used when adjudication is the method of dispute resolution and the United Kingdom Housing Grants, Construction and Regeneration Act 1996 applies
  • Option W3: Used when a Dispute Avoidance Board is the method of dispute resolution and the United Kingdom Housing Grants, Construction and Regeneration Act 1996 does not apply
42
Q

What is a conflict of interest?

A
  • A situation that has arisen that may affect your professional judgement.
43
Q

What types of Conflict of Interest are there?

A
  • Party Interest: Acting for another person with competing interest at the same time
  • Own Interest: Have obligations or pressures that detract from or affect your relationship with the client
  • Confidential Information: Are faced with conflicting duties owed to different clients
44
Q

How do you declare a conflict of interest?

A
  • Declare it to the client and ensure they are okay with it

- Get them to sign an “Informed Consent” – RICS provide a template

APC 2021 (14 decks)

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