Conflict Avoidance

Question 1

QS role in conflict avoidance/ dispute resolution (as per RICS black book)

Answer 1

An understanding of the range of techniques is particularly important, as is understanding when a client should be advised to seek assistance from an appropriate consultant or lawyer.

Surveyors should avoid the danger of straying into an area that is beyond the scope of their expertise and should recognise when and what type of assistance might be required.

Must manage professionally, objectively and consensually day-to-day or regular conflicts, disagreements and causes of dispute that arise in respect of property and construction matters

Question 2

What is conflict avoidance (as per RICS black book)

Answer 2

Conflict avoidance involves preventing disagreements/ timely resolution of them to prevent disputes by:
- carefully and properly planning
- clarity on the strategy for executing a project
- adopting proactive conflict avoidance approaches such as carrying risk analysis; producing and updating risk register, proactively managing the risks and adopting a proper approach to partnering.

Question 3

Conflict avoidance processes (as per RICS black book)

Answer 3

• Good management; Proactivity and planning and managing future work, as well as raising early any issues of concern, provide confidence in the surveyor’s ability, enabling problems to be analysed and managed.
• Clear contract documentation; Many disputes arise from ambiguities in contract documentation or argument as to whether there is a contract at all.
• Partnering; Building co-operation between the project participants in order to foster team working and problem solving.
• Good project management; Proactively managing all aspects of time, money and risk associated with the project. This involves often addressing some of the most difficult issues.
• Good client management; good understanding of the client’s objectives and the client’s approach to risk is also extremely valuable, as will be maintaining good lines of communication with the client.
• Good constructor management; In terms of conflict avoidance, this means having an objective understanding of the project, the contract and the programme of works.
• Record keeping; Many disputes can be resolved by retrospectively considering records that have been kept during the course of the procurement or the carrying out of a project.
• Regular reporting; The regular monitoring of cost, progress and quality is important for the success of any project. This may take the form of minutes of meetings, progress reports, drop lines on programmes, and photos.

Question 4

What is dispute resolution (as per RICS black book)

Answer 4

Dispute resolution is about recognising when a dispute has arisen and appreciating the escalation of that dispute. It is understanding the range of techniques that might be available to resolve the dispute and seeking appropriate guidance before the client is placed at a disadvantage in respect of its position with the other party.

Question 5

Dispute resolution techniques (as per RICS black book)

Answer 5

Three distinct processes/ three pillars of dispute resolution:
- Negotiation
- Mediation/ conciliation
- Adjudicative processes e.g. adjudication, arbitration, litigation expert determination

Question 6

NEC3 provisions/ inclusions for conflict avoidance

Answer 6

EWN/ RRM processes are used for conflict avoidance, encouraging the parties to work together and identify any issues at the earliest opportunity and collectively identify mitigations to minimise the impacts on cost and programme.

Question 7

NEC3 provisions/ inclusions for dispute resolution

Answer 7

• adjudication is the dispute resolution procedure
• If either party is dissatisfied with the adjudicator’s decision then they may refer that dispute to the tribunal
  -The tribunal may be a court or an arbitration.
• If the parties are to refer their dispute to arbitration, then they need to make it clear in the contract data that arbitration applies and the procedure for this.

Question 8

Dispute resolution procedures in JCT

Answer 8

reference to adjudication in the Articles of Agreement,

further express reference to arbitration or legal proceedings.

Most JCT contracts provide that the parties could, by agreement, seek to resolve any dispute or difference through mediation.

Question 9

HGCRA 1996 adjudication rights

Answer 9

The HGCRA 1996 gives any party in a construction contract the right to rafter a dispute to adjudication and limits the adjudication process to 28 days unless extension is agreed by the parties (up to 14 days)

Question 10

Formal dispute resolution techniques

Answer 10

Adjudicative procedures
- Adjudication
- Arbitration
- Litigation
- Expert Determination

Question 11

Alternative dispute resolution procedures

Answer 11

Non-formal dispute resolution techniques such as;
- negotiation
- mediation
- conciliation

Question 12

Negotiation

Answer 12

• The problem solving efforts of the parties themselves
• Low cost due to no third party involvement
• Speed of process reliant on parties ability to meet an agreement
• Private process
• No decision, instead a mutual agreement between the parties

Question 13

Mediation

Answer 13

• Third-party intervention, assisting with forming an agreement
• Does not lead to a binding decision being imposed on the parties
• Usually a quick, low cost and private process
• Good if the parties are unable to reach an agreement

Question 14

Adjudication

Answer 14

• Third party adjudicator makes a decision based on evidence submitted by both parties
• Decision is temporarily binding, as the parties can pursue further if not satisfied with the outcome
• Quicker process, usually 28 days
• More costly than ADR procedures but cheaper than other formal processes as quicker and less evidence required
• Costs can not be recovered
• Process remains private
• Governed by HGCRA 1996

Question 15

Arbitration

Answer 15

• Third party arbitrator makes a legally binding decision (except in certain circumstances)
• Can be a slow process due to evidence required and expert witnesses
• Costly due to timescales, and legal procedures
• Costs may be recoverable from the other party
• Process remains private
• Governed by Arbitration Act 1996

Question 16

Litigation

Answer 16

• Disputes being resolved in court, with a binding decision made
• Slow process due to evidence gatherings, court timetables etc.
• Costly due to legal expenses, timescales, etc.
• Costs can be recovered form the other party
• Court processes are public
• Regulated by the Civil Procedure Rules

Question 17

What would you consider when selecting appropriate form of dispute resolution

Answer 17

• cost of method vs claims
• timescales
• binding decision

Question 18

Adjudication steps/ timescales

Answer 18

1. Notice of adjudication issued by claimant in writing
2. Appoint adjudicator (named in contract or via an Adjudicator Nomination Body) within 7 days of adjudication notice
3. Issue of a referral notice in writing within 7 days of adjudication notice
4. Adjudicator must review claim and provide a decision within 28 days of referral notice

Question 19

What would you do on notice of adjudication?

Answer 19

• notify the business/ legal department
• check if there is a named adjudicator in the contract, if yes notify them, if no start steps to identifying an adjudicator
• review claim and gather appropriate evidence to be used for a response

Question 20

Can adjudication be overturned?

Answer 20

It is intended to be binding and in some cases it may be agreed by the parties that the decision will be binding

However unless agreed by the parties the decision can be appealed through Arbitration/ Litigation

Question 21

Can adjudication award damages?

Answer 21

Only if pre-agreed by both parties

Question 22

Difference between mediation and conciliation

Answer 22

mediator will facilitate a conversation, whilst a conciliator will intervene in a conversation to offer solutions

Question 23

RICS dispute resolution guidance

Answer 23

• RICS have a black book on conflict avoidance & dispute resolution which sets out what conflict avoidance & dispute resolution is & the appropriate CA & DR processes and how we put apply these in our day to day role such as checking contract documentation to ensure there is no ambiguity, participating in negotiation, advising on when ADR may be necessary and the assistance of specialists

Question 24

RICS dispute resolution services

Answer 24

• Appoint suitable dispute resolvers e.g. adjudicator, mediator
• Training to become a dispute resolver
• Training/ guidance on recognising and dealing with disputes e.g. webinars, disputes
• Involved in conflict avoidance initiatives e.g. Conflict Avoidance Process (CAP)

Question 25

What is the Conflict Avoidance Process (CAP)

Answer 25

* Government endorsed approach for better management and avoidance of disputes, encouraging parties to act collaboratively and resolve disagreements before they escalate * Involved input from other professional bodies and companies e.g. TfL, ICE, RIBA * It is a contractual mechanism * Involves a panel of 1-3 professional experts to help parties resolve the issue/disagreement they are facing * The panel provide a fully reasoned CAP Report setting out a practical means to resolve the issue (not mandatory for parties to follow)