Level 1 - Conflict avoidance

Question 1

N2. How do you avoid conflict within FM?

Answer 1

• Ensure a robust contract is in place and clear KPIs
• Build strong, professional working relationships
• Good management and reporting
• Record keeping

Question 2

N3. What is the difference between Mediation and Conciliation?

Answer 2

• Mediation is a voluntary procedure, which involves the appointment of a third party mediator, who will help to facilitate negotiations between parties. Them aim of mediation is to help the parties reach an amicable agreement.
• Conciliation is also a voluntary procedure, which involves the appointment of a third party Conciliator. The role of the conciliator is to also facilitate negations, however the Conciliator will create a settlement proposal.

Question 3

N4. What is ADR?

Answer 3

•	ADR stands for Alternative Dispute Resolution, and was introduced as part of the Civil Procedure Rules 1998.
•	These Alternative Dispute Resolution procedures are:
o	Negotiation.
o	Mediation.
o	Conciliation.
o	Expert determination
o	Adjudication.
o	Arbitration.
o	Litigation.

Question 4

N5. What are the Civil Procedure Rules 1998?

Answer 4

• An improvement to the legal system, making it quicker, cheaper and easier to understand through the introduction of Alternative Dispute Resolution (ADR).

Question 5

N6. What Dispute Resolution method is named in your contract?

Answer 5

• ESPO = Mediation
• NEC = Adjudication.
• JCT = Adjudication.

Question 6

N7. . What do you understand by the term Statutory?

Answer 6

• Statutory Law (Statue Law) is set down by legislate.

Question 7

N9. What is the Adjudication Process?

Answer 7

• Notification of Adjudication from one party to another.
• From receipt of notification, parties have up to 7 days to appoint the adjudicator.
• Adjudicator will review parties cases, and make their decision within 28 days. (This can be extended to 42 days)
• The adjudicator does not have the power to award costs, unless the parties agree to grant him this power.

Question 8

N10. What is Litigation?

Answer 8

• Litigation is the process of taking legal action, i.e. in the construction industry, it will typically be taken to the Technology and Construction Court.

Question 9

N11. What is Arbitration?

Answer 9

• The use of an Arbitrator to settle disputes.

* It is a private, judicial determination of a dispute by an independent third party.

Question 10

N12. What is the Arbitration Process?

Answer 10

• The appointed Arbitration body must be notified, and they will appoint an Arbitrator.
• The main hearing will be held, whereby each side will present their version of the conflict, along with their evidence.
• The arbitrator will then base their decision on what they believe to be fair and just, as they are not required to follow the law or reasoning of earlier case decisions.
• It is very difficult to appeal an Arbitration, they can only be appealed if it can be proved that the arbitrator was:
o Corrupt.
o Bias.
o Arbitrator exceeded their power.

Question 11

N14. What is a Dispute Board?

Answer 11

• A group that is assigned to a project from inception. They are more a preventative form of dispute resolution rather than reactive, as they will try to identify where disputes may arise, and takes steps to ensure they do not happen.
• Usually being used on large projects

Question 12

6.1 Why can disputes occur?

Answer 12

• Poor performance of parties.
• Uncontrolled change.
• Complex contractual relationships / inadequate tender and contract documentation.
• Inability or reluctance to pay.
• Inappropriate procurement.
• Pressure to start on site before design and or contract finalised e.g. Letters of Intent (LOI)

Question 13

6.3 What techniques are available to resolve disputes?

Answer 13

The 3 Pillars of Dispute Resolution (Professor Green of Boston University)

Question 14

6.4 What are the 3 pillars of Dispute Resolution?

Answer 14

1. Negotiation – problem solving efforts of the parties themselves.
2. Mediation – 3rd party intervention makes a non-binding decision.
3. An adjudicative process – final outcome determined by a 3rd party who’s decision is binding.

Question 15

6.41 What is the difference between adjudication and arbitration?

Answer 15

• Arbitration - both sides agree to let an impartial third party, decide the case. The arbitrator’s decision (award), is legally binding and can be enforced through the courts. Normally, there is no appeal.
• Adjudication - the decision is the responsibility of a third party adjudicator selected by the parties to the dispute. Decisions are binding unless and until they are revised by subsequent arbitration or litigation. Adjudicators do not have powers to award costs.

Question 16

6.5 What are the Civil Procedure Rules and how do they apply to the construction industry?

Answer 16

• The rules used by courts in England and Wales.
• The CPR aim to improve access to justice by making legal proceedings cheaper, quicker and easier to understand for non-lawyers.
• The CPR encourages the use of ADR to settle disputes outside of court.
• Depending on the value of the case, the CPR prescribes different routes to manage the case:
o Small Claims Track – below £1K
o Fast Claims Track – up to £25K
o Multi Claims Track – above £25K

Question 17

6.7 What types is most popular within the construction industry?

Answer 17

Adjudication.

Question 18

6.9 What is conflict?

Answer 18

• When two or more parties have a difference of opinion.
• It can be positive or negative and lead to:
o Arguments.
o Negotiation.
o Dispute resolution.
o Innovation.

Question 19

6.11 What is your for conflict avoidance style?

Answer 19

• I ensure that a robust contract is in place in case of future disputes, but also build good relationships with contractors so that we can quickly and easily tackle any problems. Regular meetings is essential ensure progress and momentum.

Question 20

6.12 What conflict have you come across and how did you manage it?

Answer 20

Poor performance from contractors and missing stat compliance due dates.
Initial conversation with contractors to ascertain issues..
Agreement of actions and timescales to carry out testing
Increased frequency of contractor review meetings

Question 21

6.13 If you cannot resolve an issue during the meeting what would you do?

Answer 21

I would deal with the above by:
• Suggest that the issue be taken ‘off-line’ which is avoidance and postponing the conflict.
• This allows actions to be agreed to ensure that the information has been provided and digested by both parties.
• I would call each party separately and discuss their thoughts prior to arranging a follow up meeting.
• Sometimes it is not possible for everyone to be happy with a decision.
• I would speak to the unhappy party privately and seek commitment that their performance would not be affected.

Question 22

What is expert determination?

Answer 22

• A form of alternative dispute resolution in which an independent third party who is an expert in the subject to be considered is appointed to decide the dispute.
• The expert’s decision is binding on the parties, unless the parties agree otherwise at the outset.
• Suited to technical issues which can be determined by a technical expert, rather than detailed legal issues.
• Can also be used for issues such as rent reviews, insurance wording disputes, boundary disputes and so on.
• It is ideally suited to multi-party disputes because of its informality and flexibility.

Question 23

What is a surveyors role as an expert witness?

Answer 23

See RICS practice statement ‘Surveyors acting as expert witness’
• primary duty as an expert witness is not to a client but to the tribunal
• Be independent and unbiased
• state facts and assumptions
• impartial and uninfluenced