Mandatory - Conflict Avoidance, Management and Dispute Resolution Procedures Flashcards
Conflict avoidance, management and dispute resolution procedures - Extract from Candidate Guide - Aug 2018 (updated Feb 2022)
How do you avoid conflict?
The best way is to keep communication clear and constant so that all parties understand what it is that is going on and when there is a dispute, it can be effectively addressed in a fair way.
What are the three pillars of negotiation? (NMA)
(NMA)
Negotiation – Problem solving between the parties
Mediation/Conciliation – Third party intervention which is not binding
Adjudication – Third party intervention which is binding
Name some conflict avoidance processes?
- Good Management
- Clear Contract Documentation
- Partnering and Alliancing
- Good Payment Practice
- Record Keeping
- Regular reporting and proactivity
What is a dispute?
Where two or more parties disagree on something.
What is the scheme for construction contracts?
It is secondary legislation that essentially provides adjudicative rights to parties of a contract that do not comply with the requirements of the construction act.
What are the different techniques of conflict avoidance?
- Confronting collaborative, confront the issue rather than each other
- Compromising give and take
- Smoothing more accommodating, involves sacrifice.
- Forcing force your view to complete disregard of the other view
- Avoiding postponing.
What is your for conflict avoidance style?
I generally confront the issue as I feel that this is the quickest and least adversarial way to avoid conflict, by dealing with the facts.
I would be forcing when I believe the position is clear cut in order to protect the client.
If you cannot resolve an issue during the meeting what would you do?
I would deal with a dispute by:
• Suggest that the issue be taken which is avoidance and postponing the conflict.
• This allows actions to be agreed to ensure that the information has been provided and digested by both parties.
• I would call each party separately and discuss their thoughts prior to arranging a follow up meeting.
• Sometimes it is not possible for everyone to be happy with a decision.
• I would speak to the unhappy party privately and seek commitment that their performance would not be affected.
How are disputes avoided?
- Robust tender and contract documentation.
- Controlled change.
- Informed procurement strategies.
- Sensible risk allocation.
- Appropriate financing.
- Pro-active project management.
What techniques are available to resolve disputes?
The 3 Pillars of Dispute Resolution (Professor Green of Boston University)
• Negotiation problem solving efforts of the parties themselves.
• Mediation or conciliation 3rd party intervention makes a non-binding decision.
• An adjudicative process final outcome determined by a 3rd party who’s decision is binding.
What are the types of Dispute Resolution?
- Negotiation
- Mediation and Conciliation
- Expert Determination
- Adjudication
- Arbitration
- Litigation
What are ADR techniques?
This stands for Alternative Dispute Resolution and refers to any technique that is not litigation or arbitration.
Advantages of ADR:
• Speed takes less time than court proceedings following the CPR.
• Informality - outside of court.
• Greater opportunity for negotiation.
• Cost less money on professional fees that litigation.
• Quality of decision making “ as its made by experts in the field not judges.
What types is most popular within the construction industry?
Adjudication.
What does JCT recommend for ADR?
The methods of dispute resolution are referenced in the Articles:
• Mediation
• Adjudication (adjudicator can be named in Contract Particulars)
• Arbitration (Appointing body can be named in Contract Particulars)
What is a conflict?
When two or more parties have a difference of opinion. It can be positive or negative and lead to: • Arguments • Negotiation • Dispute resolution • Innovation.
Advantages of using dispute boards?
- Confidentiality Any disputes and decisions will remain confidential.
- Expertise Members of the Dispute Board will have been selected for their knowledge and expertise before a dispute has arisen.
- Flexibility Parties can agree the procedure in advance and can agree any changes to it during the course of the project.
- Prevention of Disputes The existence of the Dispute Board can prevent disputes escalating because Parties are reluctant to be seen making frivolous claims. This is an incentive for the Parties to reach a negotiated settlement between them.
- Relationships Dispute Boards can help to preserve relationships, as the process is consensual and all Parties are invested in the process.
- Understanding The Dispute Board will gain a good working knowledge of the project as they will undertake regular site visits and create a relationship with team members. When a dispute arises, the Board will have a much better understand than a Tribunal, for example, which would only be appointed after a dispute has arisen.
Can you name some of the RICS approved ADR / Ombudsman bodies ? Where would you find this information ?
- Centre for Effective Dispute Resolution
- The property Ombudsman
- The property Redress Scheme
- Financial Ombudsman Service
- Local Government Ombudsman
- Adjudicators Office
Contained within the RICS Guidance Note - ‘Complaints Handling’ 1st Edition 2016
What Dispute Resolution method is named in your contract?
- JCT = Adjudication.
- NEC = Adjudication.
- NFDC = Adjudication
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?
- I would prepare, as understanding you points fully is critical
- 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
Name some different forms of ADR?
- Mediation
- Conciliation
- Negotiation
What are the three formal forms of dispute resolution?
- Arbitration
- Litigation
- Adjudication
What are Alternative Dispute Resolutions? ADR
ADR predominantly means alternative dispute resolution, and refers to processes which are alternatives to the traditional binding dispute resolution procedures of litigation and arbitration. It is alternative in the sense that itis providing a faster and more economic dispute resolution procedure.
The important point is that the appropriate dispute resolution procedure should aim to resolve the dispute in an appropriate economic manner, taking into account the circumstances of the dispute.
Business relationships should be maintained, while resolving disputes at the lowest cost and within sensibly fast timetable. Confidentiality can be maintained, as indeed should flexibility in the process. This should lead to a greater satisfaction with the dispute resolution procedure for the parties.