Conflict Avoidance, Management And Dispute Resolution Flashcards

1
Q

What is the difference between conciliation and mediation?

A

Both non-binding.

Mediation:

  • Conducted by a mediator; trained professional who is impartial and neutral
  • Provides a framework and facilitates discussion

Conciliation:

  • Qualified and neutral professional facilitates negotiations
  • Conciliator takes a more interventionist role
  • Might express an opinion or make a non-binding recommendation
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2
Q

What can an organisation do to avoid conflict?

A
  • Clear tender / contract documents
  • Effective communication / regular reporting
  • Record keeping
  • Follow company procedures and policy
  • Follow RICS standards, professional statements and guidance
  • Follow the contract provisions
  • Partnering / alliancing
  • Good project management / client management / constructor management / design team management
  • Quality Management System
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3
Q

What is Alternative Dispute Resolution (ADR)?

A

An alternative to arbitration and litigation.

  • Negotiation
  • Mediation
  • Adjudication

Adjudication is a statutory right

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4
Q

How does the Construction Act reduce conflict within the industry?

A
  • Right for periodic payments
  • No “IF” contracts, so contractor must pay subbies regardless of agreement between client and MC
  • Right to suspend work on non payment promotes swift payment
  • Right to adjudication
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5
Q

What is Negotiation?

A
  • Process whereby parties work out between themselves how to resolve issues that have arisen
  • Power to settle dispute rest with the parties
  • Suitable for simple matters, easily resolvable, compromises made
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6
Q

What is an expert witness?

A
  • A person whose experience and knowledge in a field is beyond what is expected of a layman
  • Makes his or her knowledge available to the court and other bodies, to help it understand the issue before it and reach a just and reasoned decision
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7
Q

What is expert determination?

A
  • Parties agree to refer their dispute to an impartial expert third party and will then be bound by his or her decision
  • Parties can choose who is appointed
  • More informal than arbitration or litigation (cheaper and simpler)
  • Good for technical disputes
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8
Q

What are the advantages of expert determination?

A
  • Confidential
  • Less adversarial
  • Cost and time efficient
  • Procedures can be controlled by the parties
  • Expert can be appointed who is familiar with the specific technical issues
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9
Q

What is adjudication?

A
  • Third-party adjudicator settles the dispute
  • Strict timetable for resolution, based on document submissions
  • Adjudicators can take initiative in ascertaining facts and law
  • No right of appeal
  • Binding unless reversed by arbitration or litigation
  • Adjudicator either named in contract or using a nominating body in the contract
  • Both parties jointly liable for the adjudicator’s fees
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10
Q

What are the timelines for adjudication?

A
  • Notice of intention to adjudicate must be submitted by one party to the other
  • Party issuing the notice must serve its Referral (statement of case and supporting documentation) within 7 days of notice
  • Same party must also appoint an adjudicator within 7 days of notice
  • Decision made within 28 days of appointment (can be extended to 42 by mutual agreement)
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11
Q

What is arbitration?

A
  • Lawsuit without court involvement
  • Parties agree (either in contract or, through a subsequent agreement) to submit their dispute to arbitration rather than pursue litigation
  • Arbitrator has power to issue a decision as to the parties’ rights and obligations, and decisions are binding on all parties
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12
Q

What are the advantages and disadvantages of arbitration?

A

Advantages:

  • Private
  • Quick (compared to litigation)
  • Parties can agree on arbitrator with expertise in the matter
  • Arbitrator’s award can be enforced

Disadvantages:

  • Parties must bear costs of arbitrator and venue - can make small disputes uneconomical
  • Limit rights of appeal
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13
Q

What is litigation?

A
  • Involves one of the parties commencing a claim in the civil courts
  • Nature, complexity and value of the dispute will determine which court the dispute will get heard in
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14
Q

What are the advantages and disadvantages of litigation?

A

Advantages:

  • Court has power to compel parties to comply with timeframes and have powers of sanctions for non-compliance
  • Court has power to make orders for interim relief to protect a party’s position pending final judgment
  • Defined rights of appeal

Disadvantages:

  • Potentially takes longer
  • Conducted in public
  • Judgement subject to appeal
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15
Q

What are the stages of arbitration?

A
Stage 1: Initiating the arbitration
Stage 2: Appointment of arbitrator
Stage 3: Preliminary meeting
Stage 4: Statement of claim and response
Stage 5: Discovery period
Stage 6: Interchange of evidence
Stage 7: Hearing
Stage 8: Award
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16
Q

What are the three pillars of ADR?

A

The 3 Pillars of Dispute Resolution

  1. Negotiation – problem solving efforts of the parties themselves.
  2. Mediation or conciliation – 3rd party intervention makes a non-binding decision.
  3. An adjudicative process – final outcome determined by a 3rd party who’s decision is binding.
17
Q

What is the difference between adjudication and arbitration?

A
  • Adjudication is a statutory requirement
  • Adjudication is quicker and cheaper than arbitration or litigation
  • Adjudicators must reach a decision within 28 days. Adjudication decisions can be appealed and taken to arbitration or litigation
  • Arbitration is an alternative to litigation
  • Arbitration can only be used if it is stated in the contract
  • Decision reached in arbitration is final and binding unless appealed
  • Adjudication is confidential / private
  • Arbitration is only confidential if parties agree for the case to be confidential
  • Adjudication is more informal
18
Q

What are some of the advantages of ADR?

A
  • Speed: takes less time than court proceedings
  • Informality: outside of court.
  • Greater opportunity for negotiation
  • Cost: less money on professional fees that litigation
  • Quality of decision making: as it’s made by experts in the field not judges
19
Q

What is the TCC? What can you tell me about them?

A
  • Technology and Construction Court

- Set up to improve the way in which Construction disputes are handled for formal litigation proceedings

20
Q

What is a Dispute Recommendation Board?

A
  • Sit between avoidance and dispute resolution
  • 3 board members appointed at start of project
  • Can be asked for a non-binding recommendation
21
Q

What is a Dispute Adjudication Board?

A
  • Sit between avoidance and dispute resolution
  • 3 board members appointed at start of project
  • Provide formal decisions which bind the parties
22
Q

What is the Arbitration Act 1996?

A

Legal framework for arbitration, including process, the award and enforcement of that award. Based on 5 principles:

1) Fair, cost effective and fast
2) User friendly language
3) To follow Model Law where possible (harmonise national arbitration laws)