Conflict Avoidance

Question 1

JCT D&B ADR

Answer 1

• Negotiation (informal).
• Mediation (formal - not binding).
• Adjudication (formal – binding).
• Arbitration (legally binding).
• Litigation (legal judge binding).
  ADR – All previous are examples except LITIGATION.

Question 2

Best approach to project Conflict Avoidance

Answer 2

• Proactive management,
• Clear documentation,
• Collaborative contractor relationship,
• Client management,
• Clear payment terms,
• meeting minutes,
• programmes,
• cost reports,
• Clear change processes.

Question 3

Partnering

Answer 3

• Project wide co-operation.
• Open communication.
• Multi-party Contract incorporating principles.
• JCT Constructing Excellence; Risk registers,
• Risk allocation,
• KPI’s

Question 4

Negotiation –

Answer 4

• Competitive (low-ball) vs Principled (mutual gain).
• Clear outcomes
• Challenge
• Listen
• Research
• Walk away
• Patience
• See their point of view
• Focus on their pressure (time/cost)

Question 5

Mediation –Conciliation

Answer 5

• Does not give opinion/ recommendation. Independent perspective to facilitate settlement.
• Directs parties to agree on the issue on the basis of what a likely award might be.
• Conciliation; Similar but makes a RECOMMENDATION. NOT usually binding.

Question 6

Adjudication process

Answer 6

• Stat requirement under HGCRA or Scheme for Construction Contracts.
• Invoked at any time.
  5 days’ notice, appoint Adjudicator.
• 2 days to confirm availability.
• 7 days to submit evidence.
• Adjudicator decision in 28 days (can be extended with party permission).
• Binding until further escalated to Arbitration or Litigation.
• Introduced under ‘Housing Grants, Construction & Regeneration Act 1996

Question 7

Arbitration

Answer 7

• Must be option in contract.
• Private hearing (not in public eye).
  28 days to appoint single (14 for 2+).
• Short hearing; Inspecting work, materials etc.
  Written statements.
  1-day hearing.
  Can agree to extend.
  Award in 1 month.
• Documents only;
  No need for hearing.
  Submit statement and submit formal reply to each other.
  Further questioning or hearing may be requested.
  1-month decision.
• Full Procedure;
  Comprehensive process used only when previous deemed not sufficient to investigate issue.
• Cost; Losing party bares costs and Arbitrator can apportion settlement at their own discretion.

Question 8

Pre-Action Protocol

Answer 8

• Encourage ADR –
• Ensure both parties have all info –
• Allow settlement offers

Question 9

Litigation

Answer 9

• Formal process undertaken through public (Technology and Construction court)
• Public Eye (bad publicity - parties can be perceived as uncollaborative)
• Expensive.
• Time consuming.
• Binding subject to appeal.

Question 10

Expert Witness

Answer 10

Provide opinion based one:

• experience,
• knowledge
• expertise.
• Independent, impartial and unbiased

Question 11

I appreciate the benefit of encouraging parties to resolve disputes away from litigation.

Answer 11

ADR

• Quicker
• Less expensive
• Private

Summary of Litigation

⦁ Formal process undertaken through public process.
⦁ Technology and Construction court.
⦁ Public Eye.
⦁ Expensive.
⦁ Time consuming.
⦁ Binding subject to appeal.