SoE - Conflict avoidance, management and dispute resolution procedures Flashcards
What is ADR?
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 it’s made by experts in the field not judges.
What is included in the RICS Dispute Resolution Toolkit?
This includes guidance for a number of dispute resolution techniques such as arbitration, adjudication, mediation, and expert determination. It also covers terminology, service offered by the TOCS for dispute resolution and the role of the TCC.
What is in the RICS Guidance Note 91 you mention?
It is the guidance on dispute resolution and is called: Conflict avoidance and dispute resolution in construction (1st edition, 2012).
This document outlines the techniques surveyors should adopt to avoid conflict and where necessary resolve disputes. It is broken down into levels similar to that of the APC - level 1 is knowing, 2 is doing and 3 is doing/advising.
Can you name other forms of dispute resolution mentioned in the guide and describe the process?
Expert determination: The parties agreed by a contract that a third party will make a binding decision on them. The terms are therefore governed by the contract. In most cases the decision of an expert will be final, and it will not be possible to appeal that decision. This means that the decision of an expert finally determines the dispute without further recourse.
Arbitration: For arbitration to apply, the contract between the parties must contain a written agreement to arbitrate. Where it applies, the parties might choose to refer to or incorporate an arbitration procedure, such as the Construction Industry Model Arbitration Rules. Alternatively, the arbitration can simply be covered by the applicable legislation, such as the Arbitration Act 1996.
What are the three pillars of dispute resolution?
Three pillars of dispute resolution: negotiation, mediation and adjudication.
What is negotiation?
Dialogue to reach an agreement that satisfies both parties. The parties work between themselves to resolve the issue and to reach an agreement.
Advantages
* Informal
* Non adversarial – can help relationships
* Private and usually quick
* Usually inexpensive
* Flexible, parties retain control.
Disadvantages
* The compromise may not fully resolve the issue
* Some wary of disclosing too much information.
* Generally non-binding
* Costs may not be recoverable
What is mediation?
Negotiations carried out with the assistance of an impartial 3rd party person who has no power to impose an outcome. The mediators role is to facilitate a decision. When an agreement has been found, the parties can sign a document to the agreement.
Advantages
* Similar to negotiation but benefit of an impartial member
* Non adversarial
* Voluntary
* Quick
* Usually inexpensive
* Flexible as parties retain control
* Mediator can make the decision if parties agree
- Mediator does not state specialist advice
- Can be subject to delaying tactics
- Costs may not be recoverable if no settlement is reached.
What is Adjudication?
Contractual procedure for ADR. Provided by a 3rd party adjudicator selected by the parties in dispute. The adjudicator is either named in the contract or the parties agree to a nominating body. Adjudication is subject to a strict timeline and the decision is based purely on documentary submission rather than investigating facts himself. The decision is binding unless revised by arbitration or litigation. The award of costs is as the discretion of the adjudicator unless stated otherwise in the contract. Can take up to 28 days.
Advantages
* Private
* Statutory Right
* Adjudicator forms an impartial outcome based on the submission.
* Decision within 28 days
* Legally binding
* Relatively flexible
* Both parties are shown opposing evidence.
Disadvantages
* Each party bears their own costs
* Adversarial
What is arbitration?
This is more formal than mediation and involves a process in which the dispute is resolved by the decision of an arbitrator (a nominated third party who is qualified to handle arbitration). The arbitration process can be particularly useful in disputes which require an understanding of technical knowledge and where privacy is important (e.g., to avoid disclosure of commercially sensitive information) or if there is an international element (i.e., to avoid multiple legal jurisdictions). It runs as a tribunal process and decisions are binding. Many contracts will contain an arbitration clause, which requires arbitration to be used in the case of a dispute.
What are the timescales attached with adjudication?
The adjudicator is required to reach his decision within 28 days of service of the referral notice. This period can be extended by a further 14 days (42 total) if the referring party agrees or can be further extended if both parties agree.
How do you appoint an Adjudicator?
Though the nominating body - RICS as per the contract
How can you avoid conflicts in the first place?
- Good record keeping
- Defined contract document
- Early warning systems
- Regular site visits
Give me some examples of the requirements of the Housing Grants and Construction Regeneration Act.
- The right to adjudication
- The right to staged payments and dates
- The right to suspension for non-payment
What is adjudication?
Contractual procedure of dispute resolution. The decision is made by an independent 3rd party adjudicator based on the documents submitted. The decision is binding but can be overturned by arbitration or litigation.
