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QS > Conflict Avoidence And Dispute Resolutiin > Flashcards

Conflict Avoidence And Dispute Resolutiin Flashcards

1
Q

What are the different types of ADR?

A

a. Negotiation
b. Mediation
c. Conciliation
d. Adjudication
e. Arbitration
f. Litigation

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2
Q

What is negotiation?

A

a. The process whereby the disputing parties resolve the issue between themselves
b. Power to settle the dispute lies with the parties involved
c. Non binding

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3
Q

What is mediation?

A

a. Parties agree to an independent, passive third party to facilitate discussions between the disputing
parties.
b. Power to settles still lies with the parties involved however the mediator acts as a go between.
c. Used when direct communication isn’t working

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4
Q

What is conciliation?

A

a. Same as mediation however the mediator plays an active role in suggesting a solution

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5
Q

What is adjudication?

A

a. Introduced under the Housing Grants and Construction Regeneration Act 1996 (implemented 1998).
b. Amended and updated by the Local Democracy Economic Development and Construction Act 2008.
c. If the Act applies to the contract, either party may enter into adjudication at any point, within 7 days of
serving a Notice of Dispute.
d. Only pre requisite is that there must be a dispute.
e. Adjudicator has 28 days from issue of the referral to issue a decision.
f. Decision is binding
g. Process:
i. Submit a notice of dispute
ii. 48 hours later the adjudicator confirms receipt
iii. Within 7 days, it appoints an adjudicator
iv. 28 days from referral a decision must be made
v. Can be extended by 14 days however this must be agreed by both parties
h. Decision generally lasts up to PC
i. Seen as a “pay now argue later” form of ADR
j. The same dispute cannot be adjudicated on twice

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6
Q

What is arbitration?

A

a. For arbitration to apply, it must be written within the contract.
b. An elected third party makes a binding decision
c. Binding decision
d. Arbitration Act 1996.

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7
Q

What is litigation?

A

a. Going to court
b. Public and binding
c. Public element can damage a company’s reputation

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8
Q

How does the JCT SBC set out how disputes should be resolved?

A

a. Section 9 – settlement of disputes
b. Specify mediation, adjudication and arbitration
c. Article 7 – adjudication
d. Article 8 – arbitration
e. Article 9 – sets that the English courts have full jurisdiction

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9
Q

Are you aware of any legislation around dispute resolution?

A

a. Housing grants and construction regeneration act 1996
b. Local democracy, economic development and construction act 2008
c. Arbitration Act 1996

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10
Q

What is the difference between adjudication and arbitration?

A

a. Parties have to agree to arbitration and has to be specifically written into the contract
b. Adjudication is generally a 28 day process whereas arbitration can be a minimum of 4 months
c. Levels of information required to be submitted – arbitration is extensive

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11
Q

What is the HGCRA 1996?

A

b. Also known as the construction act
c. Provisions of the act include:
i. The right to be paid in interim, stage or periodic payments
ii. The right to be informed of the amount due or any payments withheld
iii. The right to suspend performance for non payment
iv. The right to adjudication
v. Disallowing pay when paid clauses
d. Act applies for all construction contracts
e. If the contract doesn’t comply, the scheme for construction contracts does

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12
Q

What is the LDEDCA 2009?

A

a. Amended the HGCRA
b. Known as the new construction act
c. Section 108 of the act enabled the adjudicator to correct a clerical or typographical error
d. Due date cannot be determined by payment notice time
e. Pay when certified clauses prohibited
f. Introduced payless notices:
i. Must specify the sum that the payer considers due and the basis for calculating the sum

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13
Q

What are the timescales for adjudication?

A

a. Adjudicator confirms receipt of notice within 48 hours
b. 7 days to appoint adjudicator
c. 28 days to reach a decision
d. Can be extended by 14 days if necessary although must be agreed by both parties

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14
Q

What is the scheme for construction contracts?

A

a. Either supplements or provisions within the contract where it has deficiencies

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15
Q

Give me an example of a dispute that you have been involved in?

A

a. Disagreement on total valuation on Greenwich
b. Contractor stated they did not agree with my assessment – main issue was around the amount of VE
that was being taken
c. I provided a full summary, showing the completion of the packages against the amount of VE that had
been applied
d. This highlighted that they had not updated their application in line with previous assessments which
lead to a superficially large difference
e. It also highlighted that the amount of VE being taken was in line with the packages progress valued,
which was an accurate way of drawing it
f. The contractor accepted my assessment and this avoided the dispute escalating any further

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16
Q

What are the three pillars of alternative dispute resolution?

A

a. Negotiation
i. Neutral fact finding
ii. Expert appraisal
iii. Early neutral evaluation
b. Mediation/conciliation
c. Adjudication

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17
Q

Talk me through negotiation:

A

a. Two main types:
i. Principled:
1. Invent options for mutual gain
ii. Competitive:
1. Will make an initial offer that is very low
2. Tactic is simple, raise offers gradually while weaving in other issues

18
Q

What are the principles of negotiation?

A

a. Understand the facts
b. Develop a common ground
c. Have a fair result in mind with an upper, medium and lower range
d. Take the views of the other party into consideration
e. Make a decision and be firm with it

19
Q

Which court deals with construction cases?

A

a. Technology and Construction Court
b. Specialist branch of the high court
c. Do not usually deal with claims under £250,000
d. Cases include:
i. Claims about professional services provided
ii. Local authorities duties to land and building
iii. Environmental claims
iv. Claims resulting from fire
v. Challenges to decision of arbitrators in construction and engineering disputes
vi. Based in the Rolls Building London

20
Q

Conflict Avoidance Processes

A 
Good Management
Clear Contract Documentation
Partnering and Alliancing
Good Project Management
Good Client Management
Good Constructor Management
Good Design Team Management
Good Payment Practice
Record Keeping
Regular Reporting and Proactivity
21
Q

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

A
  • Parties have the statutory right to adjudication assuming the contract qualifies under the construction act.
  • The Scheme for construction contracts will apply in it’s entirely
22
Q

Why do you think the JCT2005 suite of contracts has dropped arbitration in favour of litigation as a form of dispute resolution?

A
  • Arbitration is intended to be better but rarely works out cheaper.
  • Arbitration was getting more and more like litigation.
  • Litigation has improved through Civil Procedure Rules.
  • As mediation has been encouraged, less disputes reach courts and as such courts are more free which in turn reduced timescales.
  • Adjudication is effectively a simplified arbitration and has further taken away some advantages.
23
Q

What could indicate the success of a negotiation on a final account?

A

Both parties come away happy, costs agreed within cost report budgets.

24
Q

What enforces the requirement for a building contract to contain provisions for adjudication?

A

The Housing grants, Construction and Regeneration Act 1996

25
Q

What contracts does it apply to

A

Applies to all construction contracts entered into after act commencement of the act and only applies to England, Scotland and Wales as described in the act.

26
Q

How do you avoid disputes occurring?

A
  • Clear communication - PEP – clear and concise
  • Proactive management – addressing problems early
  • Capture minutes and agree actions
  • Risk management
  • Good Management – proactivity and planning future work as well as raising early any issues of concern
  • Good Client management – A good understanding of the clients objectives and the clients approach to risk – maintaining good lines of communication
  • Good payment practices – contractor relies on cashflow
  • Record keeping
  • Regular reporting and proactivity
27
Q

Define conflict:

A
  • When two or more parties have a difference of opinions.

- It can be positive or negative and lead to arguments, negotiation, dispute resolution procedures or innovation.

28
Q

Why is adjudication (ADR) required in the contract?

A

The Housing Grants, Construction & Regeneration Act 1996 (more commonly known as the Construction Act) stipulates that it should:
All construction contracts to allow for adjudication; Follow proper adjudication procedure;
Any party permitted to refer dispute to adjudication

29
Q

What changes to Adjudication have occurred due to the recent amendment to the Construction Act?

A
  • A ‘Slip Rule’ allows an adjudicator to amend his decision within 5 days to correct a clerical error; previously implied right to be done in a ‘reasonable’ time.
  • The Adjudicator now allocates his fees & expenses between parties as he sees fit; previously it could be set in the Contract.
  • Tolent Clauses, under which one party is to pay the other side’s costs of adjudication win or lose, are now outlawed.
30
Q

Can you reject the decision from adjudication?

A

Yes and that party can proceed to whichever out of arbitration or litigation is detailed in the Contract particulars.

31
Q

Who appoints the adjudicator?

A

The adjudicator can either be named in the Contract particulars
or nominated by the nominating body identified in the Contract particulars such as the RIBA and the RICS.

32
Q

What is the difference between Mediation & Conciliation?

A
  • Conciliation parties seldom face each other across the table in front of a conciliator
  • Mediation brings parties together
  • Mediation takes one day conciliation can take longer
  • Major difference is power of third party; mediator facilitates discussion without opinionating whilst the conciliator comments and can give a recommendation for settlement.
  • Mediator facilitates
  • Conciliator evaluates
33
Q

Why may you choose arbitration over litigation?

A
  • Private procedure.
  • Any dispute of any kind arising out of or in connection with the Contract can be referred: litigation will only deal with disputes arising from the Contract.
  • Choice as to the medium considered and duration.
  • Choice of the arbitrator or expertise of the arbitrator.
  • Arbitrator can amend the Contract.
34
Q

Why might you choose litigation over arbitration?

A
  • It allows multiple separate but connected disputes to be heard in the same case: useful for construction projects with the myriad of consultants and sub-contractors.
  • Statutory basis: can bring unwilling parties into litigation.
  • Parties do not pay for the court or judge.
35
Q

What is the difference between Arbitration & Litigation?

A
  • Arbitration
    o must be agreed by both parties,
    o private process
    o Parties pay for arbitrator
    o Arbitration any dispute arising in or out of contract can be referred
    o Procedure governed by Arbitration Act 1996
  • Litigation
    o only needs the agreement of one party
    o public process
    o litigation parties do not need to pay for court or judge
    o litigation will only deal with disputes arising from the contract
    o Litigation governed by law
    Can you
36
Q

Can you tell me anything about Dispute Resolution Boards?

A

Can you tell me anything about Dispute Resolution Boards?

  • Common on large international and domestic projects;
  • Usually consists of three independent people from different disciplines such as one lawyer, one QS and one engineer;
  • Contractor chooses one, employer the other and these two professionals choose the chairman or allow an organisation such as the RICS to choose;
  • Costly / costs shared equally;
  • The three parties regularly visit the project to get a feel for the project rather than be ‘parachuted’ in when there’s a problem;
  • Timescale usually 8 weeks from referral to decision;
  • Standard procedure in relevant FIDIC / ICE contract; JCT can be amended to reflect one;
  • Allows the panel to debate issue in an atmosphere of mutual trust;
  • Three consultants thus will only viable on larger projects;
  • The Dispute Board can informally assist the parties in trying to resolve any disagreements before they escalate into adversarial disputes;
  • Private process, lots of expertise, flexible, consensual and parties have buy-in.
37
Q

What styles of conflict avoidance are you aware of?

A
  • Confronting: collaborative, confront issue rather than each other
  • Compromising: give and take
  • Smoothing; more accommodating than compromising, sacrifices made
  • Forcing; force view with no disregard to other view
  • Avoiding; postponing, temporary
38
Q

What type of personalities have you come across?

A
  • Inspirer
  • Giver
  • Doer
  • Nurturer
  • Duty filler
39
Q

If you have an issue that cannot be dealt with in a meeting, what do you do?

A

I usually am open and honest; if I don’t have experience in the subject I would say to the parties that I would consult with the appropriate parties and come back to them. I would give them a time frame and if not able to deliver within that time frame give them a courtesy call to extend the date

40
Q

What steps do you take to avoid conflict?

A
  • Raise issue early; proactive planning
  • Build cooperation between project participants; team building events
  • Plan ahead and manage; time, costs and risks
  • Client management; understanding clients need, communicating early and manage expectations
  • Contractor management; Objectives assessment of progress, communicating well and dealing positively and objectively to problems that arise
  • Diligent design management
  • Diligent record keeping
  • Creating positive relationships and instilling a mutual feeling of trust
41
Q

Under JCT how long does an adjudicator have to make his award?

A

• 28 days from issue of the referral notice, but this can be extended to 42 if both parties agree.

QS (20 decks)

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