Mandatory Competency - Flash Cards - Conflict Avoidance

Question 1

What is a dispute resolution?

Answer 1

Actions and processes taken to resolve contractual disagreements between parties.

Question 2

Name some different forms of Alternative Dispute Resolution?

Answer 2

Mediation, conciliation, negotiation, ajudication, arbitration, litigation.

Question 3

Name some formal methods of dispute resolution?

Answer 3

Adjudication, Arbitration, litigation,

Question 4

What is Adjudicataion?

Answer 4

The construction act allows the automatic right to Adjudication to resolve disputes. Adjudicator is required to decide matters with information provided to them in 28 days. Binding unless determined by litigation.

Question 5

What is arbitration?

Answer 5

Arbiration allows fuller examination of isses and can take months or years, formal process where each party presnts a case, it is done in private. Decising is binding for the parties.

Question 6

What is litigation?

Answer 6

Litigation is where the case is taken to court, publicly, and a judge settles the dispute. This can be appealed.

Question 7

What would you consider before selecting a form of dispute resolution?

Answer 7

The cost of the dispute resolution in proportion to the claim, timescales, impact on business relationships and reputation.

Question 8

What is conciliation?

Answer 8

Similar to mediation, relies on in depended third party to aid reaching the agreement - role to act as messenger and encourage diplomacy.

Question 9

What is mediation?

Answer 9

Relies on bringing in an impartial third party to mediate and guide a decision. encourage a coming together of parties in order to facilitate a decision as opposed to acting only as a messenger which is the key differentiator between mediation and conciliation.

Question 10

What is negotiation?

Answer 10

Negotiation is where the parties reach an agreement through an informal private or facilitated discussion.

Question 11

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

Answer 11

Both parties are satisfied with the outcome and feel that a fair and reasonable compromise was reached. A partnering approach is adopted with both parties feeling as though their long-term relationships and reputations have been maintained.

Question 12

What is adjudication?

Answer 12

Adjudication is a statutory form of dispute resolution procedure available in the United Kingdom. It is a relatively simple and efficient method of resolving disputes without engaging in lengthy and expensive court proceedings. Relies on an independent third party who considers the claims of both parties. A binding decision is made by the adjudicator which can be appealed either through litigation or arbitration. It has the advantage of being time sensitive with a decision being made within 28 days.

Question 13

What enforces the requirement for a building contract to contain provisions for adjudication?

Answer 13

The Housing grants, Construction and Regeneration Act 1996 (Construction Act).

Question 14

Which contracts does adjudication apply to?

Answer 14

It applies to all construction contracts entered into after the act commenced within England, Scotland and Wales.

Question 15

What if a building contract does not contain provisions for adjudication?

Answer 15

Parties still have the statutory right to adjudication assuming the contract qualifies under the construction act. Failing this the Scheme for construction contracts will apply in its entirety

Question 16

Please explain your understanding of the arbitration process?

Answer 16

Arbitration is a procedure for the resolution of disputes which is under the control of the parties. Certain conditions must be met for example a genuine dispute or difference between the parties must have occurred with an award being capable of enforcement. A binding agreement must be reached to escalate the matter to arbitration. The proceedings are undertaken in a private setting meaning the reputations of both parties can be preserved to an extent.

Question 17

Can you explain in detail the difference between arbitration and litigation procedures?

Answer 17

Arbitration - Governed by the Arbitration Act 1996, both parties must agree to enter arbitration, formal submission by both parties, conducted in private.
Litigation - Proceedings conducted in court, public process that follows civil procedure rules, high cost process.

Question 18

What RICS guidance can be referred to for conflict avoidance and dispute resolution?

Answer 18

RICS Practice Information on Conflict avoidance and dispute resolution.

Question 19

What information can be found in RICS Practice Information on Conflict Avoidance and Dispute Resolution?

Answer 19

Conflict avoidance processes, procedures and considerations in practice.

Question 20

How would you use communication to reduce the likelihood of conflict?

Answer 20

Accurate record keeping, ensuring effective communication is upheld.

Question 21

What are some common causes of disputes?

Answer 21

Delay, contract errors, poor contract administration, poor quality work.

Question 22

What is unconcious bias?

Answer 22

Automatic assumptions and rections that arise when encountering a person, group, leading to discrimination and steretyping based on factors such as race, gender and etenicity.

Question 23

What is the process of adjudication?

Answer 23

Party bringing claim serves notice of adjudication. Followed by a referral notice that contains full details of the claim. Within 7 days, agree on an adjudicator and settle terms and conditions, right to refer should be raised now. Between 7 and 14 days, responding party serves a response. Withing a further 7 days, the referrer replies and gives Opp for response to make further representation. By day 28 the Adjudicator reaches a binding decision.

Question 24

What is the adjudication slip rule, and what does construction act confirm?

Answer 24

Adjudicator slip rule allows for minor amendments to decision within 5 days, off own initiative or application form either party regarding an error.