Conflict Avoidance (L1)

Question 1

What is a common cause of dispute within a project?

Answer 1

1) Contract errors / omissions
2) Misunderstanding of the brief
3) Non-compliance with the brief
4) Poor performance
5) Poor communication / reporting

Question 2

Why is it important to have conflict avoidance processes in place?

Answer 2

• CAP prevent poor project performance, and provide mechanisms to avoid conflict early.
• This can lead to better project outcomes, which protect relationships.

Question 3

How do you avoid conflict on project work?

Answer 3

1) Clear project brief and objectives.
2) Clear roles and responsibilities.
3) Clear communication and structure engagement plans.
4) Early stakeholder engagement.
5) Transparent reporting.
6) Clear contract documents and administration.
7) Proactive risk management.

Question 4

Can conflict be a good thing?

Answer 4

While conflict is generally negative, creative tension can be beneficial as it acts as a stress test for design.

Question 5

How do you manage conflict?

Answer 5

1) Identify the conflict.
2) Investigate the situation.
3) Promote clear and collaborative communication.
4) Seek solutions.
5) Consider preventative strategies.

Question 6

What can you do if negotiations break down?

Answer 6

If negotiations break down, you can use mechanisms like mediation, adjudication, or arbitration.

Question 7

What dispute resolution procedures are you aware of?

Answer 7

Procedures include negotiation, mediation, conciliation, adjudication, arbitration, and litigation.

Question 8

Why should a firm have a complaints handling procedure?

Answer 8

A complaints handling procedure is required by RICS, mitigates disputes, ensures complaints are recorded, and defines a clear procedure for dispute resolution.

Question 9

What is the M3 procedure if a complaint is raised?

Answer 9

The M3 procedure includes informing the line manager, acknowledging the complaint within 5 days, formally responding within 14-18 days, recording and investigating, and holding internal lessons learned.

Question 10

What RICS guidance is there on conflict avoidance?

Answer 10

The RICS Guidance Note on Conflict Avoidance and Dispute Resolution in Construction outlines key areas for surveyors to understand.

Question 11

What is the difference between adjudication and arbitration?

Answer 11

Adjudication is less formal and more easily appealed than arbitration, which mirrors litigation.

Question 12

What is ADR?

Answer 12

Dispute resolution methods outside of formal court litigation, including:

1) Consensual - mediation, concilliation, negotiation, expert determination.
2) Contractual - Arbitration
3) Statutory - Adjudication

Question 13

What is the RICS Dispute Resolution Service?

Answer 13

The RICS Dispute Resolution Service includes adjudication and arbitration services offered by RICS.

Question 14

What is a surveyor when used as an expert witness?

Answer 14

An expert witness is knowledgeable in a specialized field and assists the tribunal, with a primary duty to remain independent and unbiased.

Question 15

What is the difference between a surveyor as an expert witness and a surveyor advocate?

Answer 15

An expert witness’s primary duty is to the tribunal, while a surveyor advocate’s duty is to the client.

Question 16

What is conflict?

Answer 16

A situation of disagreement between two or more parties due to differing objectives, values or working styles.

Question 17

What dispute resolution processes are there?

Answer 17

There are a variety of dispute resolution processes, including:

1) Consensual dispute resolution processes - Negotiation, Mediation, Conciliation, Expert Determination

2) Contractual dispute resolution processes - Arbitration

3) Statutory dispute resolution processes - Adjudication, Litigation

Question 18

What is Negotiation?

Answer 18

Structured process of communicating between two or more parties with the aim of reaching a mutually acceptable agreement.

Question 19

What is Mediation?

Answer 19

An informal but structured settlement process where a mediator is employed to facilitate a dispute settlement.

Note: Mediation is a non-binding process with no authority.

Question 20

What is Conciliation?

Answer 20

Conciliation is the same as mediation (i.e. an informal but structured settlement process facilitated by a concilliator), however a conciliator would take an active role and would propose settlement solutions.

Note: The settlement solution is non-binding.

Question 21

What is the difference between Mediation and Concilliation?

Answer 21

Mediation = Third party mediator facilitates a dispute resolution settlement, however does not propose a solution.

Conciliation = Third party conciliator facilites a dispute resolution settlement, however does propose a solution.

Question 22

What is Expert Determination?

Answer 22

Both parties agree for a technical expert to resolve highly specialised or technical disputes.

In the majority of cases, the expert decision is final and binding, however this depends on the terms of the contract.

Question 23

What is Arbitration?

Answer 23

A formal process in which both parties agree to let an impartial third party (arbitrator) determine a binding dispute resolution.

Note: The decision is legally binding and can be enforced through the courts (governed by the Arbitration Act 1996), however is private and dealt outside of the courts.

Question 24

What is Adjudication?

Answer 24

A formal process used in construction where an adjudicator makes a temporarily binding solution on a construction dispute.

Adjudication applies to all construction contracts in the UK by law, as imposed by the Housing Grants, Construction and Regeneration Act 1996.

Note: The decision is legally binding, unless it is revised by arbitration or litigation.

Question 25

What is Litigation?

Answer 25

A public process of contesting legal actin in courts as a means of resolving a dispute. Note : Parties must have attempted to resolve all other forms before litigation is taken.

Question 26

What are the pro's and con's of negotiation?

Answer 26

Pros: 1) Fast and flexible 2) Low cost 3) Preserves Relationships Cons: 1) No guarentee of resolution 2) Dependent on goodwill and skill of parties

Question 27

What are the pro's and con's of concilliation?

Answer 27

Pros: 1) Neutral third party helps identify solutions 2) Confidential 3) Preserves relationships Cons: 1) Non-binding unless agreed. 2) Dependent on parties' cooperation

Question 28

What are the pro's and con's of mediation?

Answer 28

Pros: 1) Voluntary, flexible and confidential 2) Preserves relationships 3) Fast process Cons: 1) Usually no resolution proposed 2) Dependent on parties' cooperation

Question 29

What are the pro's and con's of expert determination?

Answer 29

Pros: 1) Useful for technical or specialist issues. 2) Faster than arbitration 3) Can be binding (if agreed) Cons: 1) Limited to technical matters

Question 30

What are the pro's and con's of arbitration?

Answer 30

Pros: 1) Binding and enforceable 2) Private and confidential 3) Flexible when compared with litigation Cons: 1) More formal and costly than concilliation / mediation 2) Can be time-consuming 3) Limited appeal rights

Question 31

What are the pro's and con's of adjudication?

Answer 31

Pros: 1) Provides a quick decision 2) Keeps projects moving 3) Cost effectivie when compared with litigation / arbitration Cons: 1) Decision is temporary and can be overturned

Question 32

What are the pro's and con's of litigation?

Answer 32

Pros: 1) Legally binding 2) Enforceable through courts Cons: 1) Expensive 2) Public process 3) Can lead to long term permanent relationship damage

Question 33

What is the difference between adjudication and arbitration?

Answer 33

Adjudication and arbitration differ in several ways, specifically: 1) Speed - Adjudication is a quicker process, taking weeks as opposed to arbitration which can take months. 2) Formality - Adjudication is less formal and has procedural flexibility. Arbitration mirrors litigation. 3) Decision Making - Adjudication provides a quick, interim decision to keep a project moving. Arbitration provides a final, binding solution. 4) Cost - Adjudication is comparatively lower cost than arbitration.

Question 34

Why would you pick adjudication over arbitration?

Answer 34

If you wanted a quick, decision on a specific issue which would allow the project to continue progressing.

Question 35

Why would you pick arbitration over adjudication?

Answer 35

If you wanted a legally binding and enforcable decision over multiple contract clauses.

Question 36

What is the traditional adjudication process?

Answer 36

1) Party raising the dispute serves a notice of adjudication 2) An independent adjudicator is agreed through a nominating body (such as the RICS) 3) The claimant submits details of the dispute. The responding party responses. 4) Adjudicator reviews details. 5) Adjudicator issues a written decision award. Traditionally the decision comes within 28-days.

Question 37

What is the traditional arbitration process?

Answer 37

1) Party raising the dispute notifies the party 2) Parties select an arbitrator with relevant experience. 3) Preliminary conference held. 4) Submission of evidence from both sides. 5) Formal hearing held 6) Deliberation and award. Time frame depends on complexity of dispute, however betweeen 3 - 6 months

Question 38

What if your contract is silent on Alternative Dispute Resolution?

Answer 38

If the contract qualifies under the construction act, adjudication still applies. If not, the parties are free to choose a dispute resolution process.

Question 39

What role does the RICS play in Dispute Resolution?

Answer 39

1) Provides ADR services through its Disputre Resolution Service, including (1) mediation (2) conciliation (3) expert determination (4) arbitration 2) RICS can appoint neutral professionals as adjudicators 3) Provides guidance documents on adjudication, arbitration and mediation.

Question 40

What is an Expert Witness?

Answer 40

An individual with specialist knowledge in a particular field who provides independent evidence to assist in resolving a dispute.

Question 41

What is a Surveyor Advocate?

Answer 41

A qualified surveyor who is legally trained and authorised to represent a client in dispute resolution.

Question 42

What is the difference between the two?

Answer 42

Expert witness = provides indepenent opinion. Must remain neutral. Surveyor advocate = presents arguments in favour of a paty. Supports the client.

Question 43

What dispute resolution method is referenced in your contract?

Answer 43

On 1ES, the named dispute resolution method is Adjudication. The nominating body is the RICS.