Conflict Avoidance

Question 1

Name some common causes of dispute?

Answer 1

Misunderstanding of the brief
Miscommunication
Poor performance
Contract errors or omissions

Question 2

Give some conflict avoidance processes you would put in place?

Answer 2

Ensuring good communication lines & defining roles & responsibilities
Understanding objectives (brief) and attitude to risk
Record keeping
Regular reporting and proactivity
Clear contract documentation

Question 3

Name some dispute resolution methods

Answer 3

Negotiation
Mediation
Adjudication
Arbitration
Litigation

Question 4

What is Adjudication?

Answer 4

Dispute resolution procedure:
Included in all construction contracts by law - Housing Grants Act
Resolved by adjudicator within 28 days of receipt
Decision binding - can seek another review
No legal costs
Quick, Cheap, Private

Process:
o Party referring dispute serves notice
o Adjudicator elected in 7 days
o Referring party has 7 days to set out case in detail
o Responding party has 7 days to respond
o 28 days for decision from referral notice being served

Question 5

What is Arbitration?

Answer 5

• More formal, contract based dispute resolution process that mirrors litigation
• Governed by the arbitration act 1996
• Both sides agree to let third party adjudicator decide the case
• Legally binding – limited rights to appeal
• Arbitrator has power to award legal costs
• Process
  o Claimant files for arb
  o Defendant files to answer request
  o Both parties select arbitrator
  o Arbitrator & parties decide timetable and schedule of hearings
  o Parties put forward arguments & challenge evidence
  o Arbitrator makes decision

Question 6

What is litigation?

Answer 6

Mirrors arbitration but:
- Decided by a judge
- Must have attempted to resolve all other forms before litigation is taken
- Public process = expensive, inflexible and confrontational – potentially damages future relationships

Question 7

Can conflict be a good thing?

Answer 7

• Not really, creative tension can be good to test design though

Question 8

Difference between adjudication & arbitration?

Answer 8

• Adjudication is not as formal, arbitration similar to litigation
• Adjudication can be appealed more easily, cannot be enforced without court judgement
• Adjudication automatically applies to all construction contracts, under the Housing Grants Act. Arbitration requires both parties to have signed up to it

Question 9

Benefits of adjudication over arbitration?

Answer 9

• Adjudication faster, whilst arbitrator typically makes decision within 45 days of closing the proceedings
• Arbitration is far more formal, with strict rules of evidence
• Adjudication allows works to continue whilst the two parties resolve the conflict
• You & the other party are liable for the fees and legal costs associated, which can be awarded through the decision

Question 10

Role of RICS in dispute resolution?

Answer 10

• Issues guidance notes on how to resolve disputes
• Training
• RICS Dispute Resolution Services
  o Offers mediation, adjudication and arbitration

Question 11

When is a surveyor used as an Expert Witness?

Answer 11

• Someone with specialised knowledge in an area who is appointed by a party within a dispute in order to give an opinion to the tribunal on a topic
• Has a duty to remain impartial, state facts and act without bias
• If appointed as Expert Witness a surveyor must:
  o Advise the client that the RICS Practice Note will apply
  o Supply them with an RICS Expert Witness client guide
  o State that the usual complaints handling procedure won’t apply, as their duty is to be impartial rather than to the client
  o Check no conflict of interest

Question 12

What is a surveyor advocate?

Answer 12

• Surveyor advocate is appointed by a party to put forward the client’s case
• They have a duty to the tribunal and also their client
• They must act in the client’s best interest, should advance their client’s interest through proper means

Question 13

What is the M3 conflict avoidance procedure?

Answer 13

• We have a formal Complaints Handling Procedure, outside of the RICS procedure as not an RICS firm:
  o Inform line manager and project director for excellence
  o Acknowledge complaint within 5 days
  o Formally respond within 14-18 days
  o Formally record and investigate
  o Internal lessons learnt session