Conflict avoidance

Question 1

What is dispute resolution?

Answer 1

A term that refers to several processes that can be used to resolve a conflict, dispute, or claim.

Question 2

What does ADR stand for?

Answer 2

ADR stands for Alternative Dispute Resolution.

ADR predominantly means alternative dispute resolution and refers to processes which are alternatives to the traditional binding dispute resolution procedures of litigation and arbitration.

Main forms of ADR: Negotiation, Mediation and Adjudication.

Question 3

What is the TCC?

Answer 3

Technology and Construction Court (TCC)
Handles disputes about buildings, engineering and surveying.
The TCC does not normally handle cases with a value of less than 250,000 pounds unless there is a reason.

Question 4

What is Mediation?

Answer 4

The parties agree on an independent, neutral third-party system to facilitate discussion between them with the goal of reaching a settlement.

The power to settle remains with the parties, but the process is led by the mediator.

-Mediation encourages coming together and agreeing.

-By mutual agreement (voluntary)

-The process can be initiated at any time between the parties.

-The mediator does not award a winning party.

-The process is non-binding.

-Without prejudice.

Question 5

What can you do if negotiation breaks down and the matter cannot be resolved?

Answer 5

Consider an ADR (Alternative Dispute Resolution) to resolve the dispute.

Question 6

What is an expert witness?

Answer 6

An expert witness is defined as a person whose experience and knowledge in a particular field is beyond what is expected of a layman. An expert witness maes his or her knowledge available to the court or other bodies to reach a just and reasoned decision.

Question 7

In your opinion, what is the cause of most disputes?

Answer 7

-Commercial aspects.

-Unclear or conflicting specifications and/or drawings.

-Teams under pressure (poor or rushed decisions are made).
Insufficient detail/ consideration is given to building contracts prior to signing.

-Unclear scope of service.

Question 8

Can you explain what a negotiation is please?

Answer 8

The process whereby the parties work out between themselves how to resolve issues that have arisen.
The power to settle the dispute rests with the parties.

-The negotiation ends when both parties come to an agreement.
Suitable for simple matters. easily resolvable, compromises made.
-Requires cooperation of both parties.

Question 9

What is conciliation?

Answer 9

A process similar to mediation used in the construction industry whereby a conciliator seeks to facilitate a settlement between the parties.

The conciliator does not decide any issues of law or fact but conducts a process whereby each party states its position and then attempt to find a compromise.

-Independent party to aid an agreement.

-The conciliator prepares a “recomendation” which sets out their solution to the dispute. If neither party dissents from the recommendation or initiates adjudication or arbitration, then the recommendation becomes final and binding.

Question 10

What is the difference between mediation and conciliation?

Answer 10

-In mediation, the mediator acts as a facilitator who helps the parties reach an agreement.

-Conciliation allows the facilitator to play a more direct role in finding a solution to the dispute. The facilitator can make suggestions for certain proposals and give advice for certain solutions.

Question 11

What is expert determination?

Answer 11

-Process whereby the parties agree to refer their disagreement to an impartial expert third party and will then be bound by his or her decision.

-The parties can choose who the appointed expert is.

-More informal than arbitration or litigation.

-Ideal for technical disputes.

Expert determination is generally simpler and cheaper than arbitration or litigation, can be used as a short cut to a binding decision.

Question 12

What are the advantages of expert determination?

Answer 12

-Confidential procedure which is less adversarial and helps parties mantain a working relationship.

-Provides a cost and time efficient solution for resolving disputes.

-Procedures are controlled by the parties rather than a court or arbitration rules.

-An expert can be appointed who is familiar with the specific technical issue(s).

Question 13

What is adjudication?

Answer 13

Adjudication was developed to allow for construction contract disputes to be resolved more quickly and cost-effectively than arbitration or litigation.

Its objective is to provide a fast-working solution to an issue (pending the outcome of, or without the need for, a more formal dispute resolution procedure) so that parties can quickly resume or continue work under the contract.

-Process to resolve a dispute.

-Final and binding.

-Independent adjudicator reviews evidence and makes a determination.

Question 14

In adjudication, can the decision period of 28 days be extended?

Answer 14

Yes, can be extended to 42 days by mutual agreement of both parties.

Question 15

Is the adjudication process binding?

Answer 15

The adjudicator´s decision will be binding on the parties (and enforceable in court) unless the adjudicator acts outside his/her jurisdiction or is baised towards one party.

Question 16

Is there and appeal process with adjudication?

Answer 16

There is no appeal process; however, the parties can take the same dispute to litigation (or arbitration if the contract contains an arbitration agreement.

Question 17

What if a building contract does not contain provisions for adjudication?

Answer 17

Adjudication became a legal right in relation to construction contracts in the UK when legislation known as the Construction Act came into force.

Question 18

Who pays for the adjudication?

Answer 18

Both parties are jointly liable for the adjudicator´s fees.

The adjudicator can usually decide who is to pay the fees and reasonable expenses.

Question 19

What is arbitration?

Answer 19

Essentially a lawsuit without court involvement.

The parties agree (either in contract before a dispute arises or, through a subsequent agreement to avoid a lawsuit) to submit their dispute to arbitration rather tan pursue a lawsuit in court.

The parties´agreement gives the arbitrator the power to issue a decision as to the parties´rights and obligations and such a decision will be legally binding on all parties.

Question 20

What are the advantages of arbitration?

Answer 20

The process is private - there is no public record of any proceeding, although they are not necessarily confidential.

Speed (compared to litigation).

The parties can agree on an arbitrator with relevant expertise in the matter.

The arbitrator´s award can be enforced as a judgement of the court.

Question 21

What are the disadvantages of arbitration?

Answer 21

The parties must bear the costs of both the arbitrator and the venue.

Limited appeal rights.

If the matter is complicated but the amount of money involved is modest, then the arbitrator´s fee may make arbitration uneconomical.

Question 22

How can you avoid conflict in the first instance?

Answer 22

Clearly state in all tender and contract documents exactly what is required of all parties.

Ensure continuous, effective communication between all parties.

Put everything in writing to ensure there is always documented evidence should a dispute arise (meeting minutes).

Follow RICS standards, professional statements and guidance.

Question 23

If conflict occurs, how do you deal with it initially?

Answer 23

Raise the issue with all parties and try to resolve it through communication and negotiation.

A face-to-face meeting is usually the best way to find a resolution.

Question 24

What could indicate the success of a final account negotiation?

Answer 24

All parties come away happy :D

Costs agreed and within the client´s budget.

The negotiation is resolved in a timely manner.

Question 25

What is litigation?

Answer 25

Litigation involves one of the parties bringing a claim in the civil courts. The courts have inherent jurisdictions to hear a dispute involving just about anything. The nature, complexity and value of the dispute will determine which court will hear a particular dispute.

Question 26

What are the advantages of litigation?

Answer 26

Judges can compel the parties to comply with time frames and have the power to impose sanctions for non-compliance. Judges have the power to make orders to provide interim relief to protect a party´s position pending final judgement. There are defined rights of appeal in cases where errors of fact or law are made.

Question 27

What are the disadvantages of litigation?

Answer 27

Potentially greater costs if the dispute is not well managed or the other party seeks to delay the proceedings. Potentially a longer period to obtain a judgement. Proceedings are generally conducted in public. Judgement will be subject to appeal.

Question 28

Can you explain how the adjudication process works please?

Answer 28

1. Pre-adjudication 2. Notice of adjudication 3. Appoint the adjudicator 4. Referral Notice 5. Response 6. Reply and rejoinder 7. Decision 1. Pre-adjudication -Do you have a "construction contract"? -What provisions for adjudication apply? -Do you have the right to adjudicate? A dispute mus have crystallised: *Has a claim been maid? *Does it set out relevant information (background, legal basis and remedy sought) and request a reply within a reasonable period of time? *Has the other side rejected tje claim or failed to respond? 2. Notice of adjudication -The Referring Party must serve the Notice of Adjudication. -The Notice shoukld set out key information such as details of the parties, the contract, the nature of the dispute and the remedy sought. 3. Appoint the adjudicator -This must be done within 7 days of the Notice of Adjudication. -The contract should set out how an adjudicator is to be appointed. They may be named or appointed through a particular nominating body (such as RICS). -The Referring Party should consider if there is a particular adjudicator they wish to propose to the Responding Party - perhaps because of expertise or previous adjudication experience. -The adjudicator will set preliminary directions. 4. Referral Notice -This must be sered within 7 days of the of the Notice of Adjudication. -It should set out the Referring Party´s case together with supporting evidence and documentation. 5. Response -Within 7 days of the Referral Notice (this can be extended to 14 days) the Response (i,e. a defence), together with supporting evidence and documentation. 6. Reply and rejoinder -The adjudicator may permit the Referring Party is serve a Reply and, in turn, the Responding Party to serve a Rejoinder -The adjudicator may request further documents or submissions, a site visit or an oral hearing in order to assist them in making a decision. 7. Decision -The adjudicator must give his or hers decision within 28 days of the Referral Notice. -This can be extended by 14 days with the agreement of the Referring Party or by such period as both parties agree. -The Decision is binding unless it is challenged by litigation or arbitration.