Conflict Avoidance

Question 1

What processes can be put in place to avoid conflict?

Answer 1

Proactive management, good record keeping, clear documentation, clear communication protocols, defined roles and responsibilities, standard operating procedures, risk management, early warning systems

Question 2

What is ADR?

Answer 2

Alternative dispute resolution is group of processes that can be used in order to resolve conflicts on a construction project

Question 3

What methods can be implemented to resolve conflicts? ADR

Answer 3

Mediation, Adjudication, Arbitration, Litigation, Negotiation, Conciliation

Question 4

What are the 3 pillars of dispute resolution?

Answer 4

• Negotiation
• Mediation ie Third party intervention
• Adjudication/Arbitration/Litigation

Question 5

What are the differences in ADR?

Answer 5

• Mediation: is a voluntary and non-binding dispute resolution process. It involves appointing an impartial 3rd party mediator to assist the parties in reaching a mutually acceptable resolution.
• Adjudication: is a dispute resolution process specifically designed for the construction industry, providing a quick and cost-effective method to resolve conflicts that arise during construction projects. It involves the appointment of an impartial adjudicator who reviews the evidence presented by the parties involved and makes a binding decision within a set timeframe. This process is intended to ensure that disputes do not cause significant delays or disruptions to the project.
• Arbitration: Arbitration is a form of alternative dispute resolution (ADR) that provides a final solution to a construction dispute. Arbitration is private, with the aim to resolve disputes fairly, keeping costs and delays to a minimum. Disputes are resolved based on material facts, documents, and relevant construction law principles.
• Litigation: Construction litigation involves resolving legal disputes related to construction projects through court proceedings or arbitration. Due to the complex, long-term nature of construction contracts, disputes are common in this industry. These disputes typically arise from issues like contract breaches, delays, payment issues, or negligence.
  Conciliation: Similar to mediation. Independent party seeks to facilitate a settlement. Prepares a recommendation for the solution, if neither party disagrees then the solution becomes final and binding.

Question 6

What is the difference between mediation and conciliation?

Answer 6

• The conciliator is allowed to play a more direct role in the solution of the dispute, can make suggestions and provide advice. Mediator simply acts as a facilitator.
• If an agreement made, the solution becomes binding under conciliation but not under mediation.

Question 7

What is the difference between litigation and arbitration?

Answer 7

• Arbitration is out of court, litigation is in court.
• Arbitration is private, court cases have a public record.
• Arbitration is quicker.
• Parties can agree on an arbitrator.

Question 8

What is the difference between adjudication and arbitration?

Answer 8

• Time, adjudication is designed to be quicker.
• Decision making, an arbitrators decision is binding and can be enforceable in court
• Confidentiality, arbitration is done privately, adjudication can be open to public scrutiny

Question 9

Are there any timescales associated with Adjudication?

Answer 9

• One party raises a Referral notice that they want to go to adjudication.
• Within 7 days of the notice, the party must raise their Referral (statement of case) to the other party.
• In the same 7-day period, the party must secure an adjudicator. Will either be a person named in the contract, or the governing body.
• After the adjudicator is appointed, they have 28 days to make their decision from the Referral Notice.
• This can be extended by 14 further days to 42 days by mutual agreement of both parties.

Question 10

What are the named ADRs under JCT?

Answer 10

Adjudication
Arbitration

Question 11

What does the RICS guidance notes say on conflict avoidance?

Answer 11

• The RICS guidance on conflict avoidance emphasizes proactive management, clear contract documentation, and collaborative partnering to prevent disputes from arising in the first place.
• It also details the RICS Conflict Avoidance Process (CAP), a structured procedure involving an independent panel to provide non-binding recommendations and resolve emerging issues early, before they escalate into formal confrontational procedures

Question 12

Who can be an adjudicator?

Answer 12

• Named in the contract or agreed between the parties.
• Needs to be experienced, independent, and have expertise in construction

Question 13

Where can you find a RICS accredited mediator?

Answer 13

On the RICS website, RICS provide this service

Question 14

Can you go straight to arbitration?

Answer 14

Yes if both parties agree to it either at the contractual stage and it is included in the contract particulars or even at the time of dispute.

Question 15

Can you dispute litigation?

Answer 15

You can challenge a litigation decision

Question 16

What is a dispute resolution board? What is the difference between a board and an advisor?

Answer 16

• A board is typically 1-3 people appointed at contract stage to resolve disputes if and when required
• A dispute advisors is someone who sits in on meetings and gives advice regularly on potential conflicts

Question 17

Define Conflict Avoidance

Answer 17

Conflict avoidance is the process of carefully planning the strategy for executing a construction project

Question 18

Is there any legislation regarding conflict avoidance?

Answer 18

Arbitration Act 1996

Question 19

What is the RICS dispute resolution toolkit?

Answer 19

It is a document published by a coalition steering group that the RICS is a part of that gives proactive guidance on how to avoid conflict in the construction industry. It also gives advice on how to resolve disputes in they arise.