Conflict Avoidance

Question 1

What are the minimum levels of service?

Answer 1

• Seek clarity in any documents produced for the purpose of procuring works
• Identify risks which should be brought to the clients attention
• Manage professionally, objectively and consensually in day-to-day work
• Recognise escalation of disputes and keep client informed
• Understand the range of ADR processes
• Recognise when more specialist assistance is required (rule 2)

Question 2

What is the cause of disputes?

Answer 2

Lack of communication and misunderstandings, complaints, breaches of contract

Question 3

How can you avoid conflict?

Answer 3

Good communication, clear contract documentation and good contract management, following procedures, good record keeping and audit trails

Question 4

How to deal with conflict initially?

Answer 4

Speak to the other party verbally to understand the conflict, before following up formally and proceeding with appropriate formal method

Question 5

What ADR processes are you are of?

Answer 5

Mediation, conciliation, negotiation, adjudication, arbitration

Question 6

What is Negotiation?

Answer 6

• Parties come together to discuss, problem solve and agree (negotiate) on an outcome to the issue
• No 3rd party involvement

Question 7

What is Mediation?

Answer 7

• Third party impartial mediator who helps to find solution
• Mediator does not pass opinion or judgement – simply facilitates so that both parties can find a solution
• Useful if negotiation is fraught and poor communication - there to ease tensions and improve communication – encouraging parties to explore potential solutions.
• Decision/outcome is not binding
• Lower cost/time then other ADR’s such as Adjudication and Arbitration (and potentially Conciliation)

Question 8

What is Conciliation?

Answer 8

• Third party impartial conciliator who reviews situation, meets with both parties and then makes a recommendation of a solution
• Useful if negotiation is fraught and poor communication - Conciliator (like Mediator) is there to ease tensions and improve communication – encouraging parties to explore potential solutions.
• Decision/outcome is not binding
• Lower cost time then other ADR’s such as Adjudication and Arbitration

Question 9

What is Adjudication?

Answer 9

• Dispute is referred to an adjudicator by one party
• Adjudicator makes a binding decision on dispute
• Entitlement to adjudication is a provision under the HGCRA 1996 and the timescales are outlined in the scheme for construction contracts 1998
• Timescales
  - Notice of Adjudication is issued
  - The referral notice must be served within 7 of service of the
  Notice
  - The adjudicator’s decision must be made within 28 days of
  service of the referral notice
  - This period can be extended by a further 14 days if the
  referring party agrees, or can be further extended if both
  parties agree
• NEC4 W2 – Clause W2.2(1) states that a Party may refer a dispute to the Adjudicator at any time, whether or not the dispute has been referred to the Senior Representatives. In line with HGCRA.

Question 10

What is Arbitration?

Answer 10

• Dispute referred to a tribunal
• Decision is final and binding but not public like litigation
• Expensive process but good if discretion is required
• Arbitration Act 1996 regulates proceedings and powers that arbitrators have – outlines must be fair, impartial, autonomous and accessible

Question 11

What is Litigation?

Answer 11

• Legal proceeding that is settled in court
• The technology and construction court deals with disputes in construction and engineering
• Decision is final and binding
• Very expensive and public decision
• Wolfe Report - Must have attempted other forms of ADR before going to court

Question 12

What is Expert Determination?

Answer 12

• Contract outlines that parties agree to refer a dispute to an expert third party who will decide on issue/dispute
• Expert will determine value/final account
• Generally eclipsed by adjudication – but still used where HGCRA doesn’t apply such as international contracts

Question 13

What are RICS three pillars of ADR?

Answer 13

• Negotiation – problem solving of parties themselves
• Mediation (Conciliation) – third party involvement not binding
• Adjudication – binding decision by third party

Question 14

What are the Dispute Resolution procedures on one of your contracts? NR12

Answer 14

• Employers representative decision - Employer’s Representative shall decide any dispute between the Contractor and the Employer, decision is binding, both parties can dispute the decision
• Optional Conciliation or Mediation
• Adjudication
• Litigation

Question 15

What RICS guidance/assistance is there on Dispute Resolution?

Answer 15

• Conflict avoidance and dispute resolution in construction guidance note
• RICS dispute resolution service
• RICS conflict avoidance toolkit

Question 16

What are the Dispute Resolution procedures on one of your contracts? NEC

Answer 16

Clause W2 – dispute resolution procedure used when the HGCRA applied – adjudication
If, after the Adjudicator notifies his decision a Party is dissatisfied, the matter may be referred to tribunal (stated in CDP1).

Question 17

What are dispute boards?

Answer 17

• Contractual form of dispute resolution procedure
• Adoption of dispute boards varies from jurisdiction to jurisdiction and project to project.
• Typically consists of one or three members, whose powers to resolve disputes are set out in the contract
• Dispute avoidance board - W3 NEC4 (ECC only) – to avoid rather than resolve, not appropriate for UK due to HGCRA

Question 18

Example of conflict?

Answer 18

Disagreement about value of change

Question 19

As a QS how would you avoid conflict on a project?

Answer 19

Good communication, collaborative approach, following the contract, good record keeping and audit trail

Question 20

What is the difference between arbitration and litigation?

Answer 20

Both are expensive processes with final and binding decisions but arbitration is private with disputes referred to a tribunal and litigation is public with legal proceedings in court.