Conflict Avoidance Flashcards
(37 cards)
What is dispute resolution?
Actions to resolve contractual disagreements between parties
What is conflict avoidance
Actions to prevent a conflict occuring and avoid ambiguit. Main CA processes:
- Good management - proactively planning
- Clear contract documentation - omit ambiguities, identify main areas of risk and strategy to dealing with them.
- Good Project Management - proactively planning and managing all aspects of time, money & risks and allocating responsibility.
- Client management - understanding clients objectives & approach, maintaining clear communication.
- Contract management - good understanding of the project, contract and program to ensure poractively working together as a team. Regular review of objectives.
- Good design team management
- Good payment practice
- Good record keeping & ensure ALL team understand reasons why.
What are the different forms of dispute resolution?
Negotiation Mediation Adjudication Arbitration Litigation Dispute Boards
What is adjudication?
Introduced by construction act as
a quicker way to resolve disputes.
Appointment of independent adjudicator who considers the evidence and makes decision which is binding on all parties. Default form of dispute resolution in JCT contracts!
A statutory procedure for swift dispute resolution. Provided by a third party adjudicator selected by the parties. Decision is binding until it is revised by arbitration or litigation. Whole process can take up to 28 days and the decisions are binding.
A party to a construction contract has the right to refer a dispute arising under the contract for adjudication.
What is arbitration?
Private face of litigation - Involves parties agreeing to refer dispute to a 3rd party and agree to be bound by arbitrator’s decision. Parties can decide whether it is a documents only (30 days) procedure or the full procedure.
Both parties must agree to arbitrate
Parties have wide range of control over the way the proceedings are conducted
Governed by the Arbitration Act 1996
A form of alternative dispute resolution which resolves disputes outside courts. The dispute will be decided by one or more persons ‘arbitrators’. It can either be binding or non-binding.
What is litigation?
Formal court proceeding to resolve a dispute. One party can start it and the other’s prescience is not voluntary. Goes to the technology and construction court
What are the adjudication timeframes?
Notice of adjudication is given
Adjudicator appointed
Within 7 days of notice referring party must issue referral and information
Adjudicator has 28 days to make a decision
This can be extended by 14 days by referring party
Following crystallisation of a dispute, either party can serve notice of it’s intention to refer the dispute to adjudication.
Within 7 days of serving notice, the referring party must serve it’s Referral (their case). This must contain a detailed explanation of the claim and supporting documentation.
Also within that 7 day period, the referring party must secure the appointment of an adjudicator. This will be the person or nominating body named in the contract.
The adjudicator then sets out a timetable, usually permitting the other party to issue a Response to the referral, the referring party to issue a Reply and for the other party to issue a Rejoinder to that Reply.
Adjudicator may only permit one submission per party.
Adjudicator must make decision within 28 days of Referral. This can be extended to 42 days with the permission of the Referring party or further with the agreement of both parties.
Adjudicator’s decision is binding and enforceable in court.
No appeals process however parties are able to take the same dispute to litigation.
What is the difference between mediation and conciliation?
Mediator facilitates
Conciliation evaluates
What is mediation?
Alternative dispute resolution procedure whereby a neutral 3rd party assists the disputing party through communication and negotiation. Voluntary and non-binding. Mediator does not give opinion.
What is adjudication?
A statutory procedure for swift dispute resolution. Provided by a third party adjudicator selected by the parties. Decision is binding until it is revised by arbitration or litigation. Whole process can take up to 28 days and the decisions are binding.
A party to a construction contract has the right to refer a dispute arising under the contract for adjudication.
What is Dispute resolution
Dealing with a conflict once it escalates and cannot be resolved between parties.
What is the difference between adjudication & arbitration
Arbitration is a procedure in which both sides agree to let an impartial third party, the arbitrator, decide the case. (Can take a lot longer)
In adjudication, the decision is the responsibility of a judge, magistrate, or other legally-appointed or elected official. - An adjudicator’s decision is binding unless and until it is superseded by the final decision of a court judgment
What is the process of Adjudiction & timescales
Usually set out in contract and decision can be reached within 28 days
What does a Complaints Handling procedure involve
Raise issue to immediate manager
Response to complaint within an agreed timescale as set out in a CHP
If not resolved raised to Director
Response as per CHP
If still not resolved, seek resolution as per DR in contract or property ombusman & notify PII insurer
What is the best way to avoid conflict?
Clear & consise communication & drafting of contract
Understanding risks and things that could go wrong & plan for them
Manage parties expectations
Negotiating contract terms clearly and transparetly - help avoid misunderstandings / conflict
Keep good records with sufficient details
How does record keeping avoid conflict?
Clear and factual records to avoid relying on memory
Clarifies position & record of verbal communication, photoghraphic eveidence worth 1000 words
What are the principal differences between them?
Negotiation & Mediation - undertaken by parties & may involve a faciltator / surveyor - quicker & cheaper - can be binding if parties agree
Adj - involve a judge / court and can be costly but legally binding & result in award
Which ones are binding?
Litigation in the court,
Arbitration and expert determination areall final. In other words, any dispute referred to these processes will result in a final and binding decision, with very little opportunity to appeal or overturn the decision.
Can you give me some examples of good practice associated with conflict avoidance?
Preventing a disagreement / issuing creating conflict Good management Clear & transparent communnication Good Risk management Clear contract docs Manage clients expectations Collaborative working Good record keeping Good payment practice
Can you name the three pillars of dispute resolution?
Negotiation - fact finding / expert appraisal / neutral evaluation
Mediation - Concilliation / mediation
Adjudicative process - Adjudication/ ombudsmen / DR boards / expert determination / arbitration / litigation
What can you do to try and avoid conflict?
- Clear, concise and careful drafting of the contract or lease and associated documentation
- Understanding what could go wrong or how misinterpretation between parties might arise
- Managing all parties’ expectations by understanding their objectives and clearly communicating these, as well as implementing ‘early warning systems’, including serving of appropriate notices
- Negotiating contractual obligation carefully and transparently will help to avoid later conflict or at least enable their efficient resolution
- Keeping good records with a sufficient level of detail can often help to resolve conflicts before they escalate
What are the THREE main processes available in resolving disputes?
- Negotiation: problem-solving efforts of the parties themselves
- Mediation or conciliation: third party intervention which does not bind the parties to a decision but assists them to resolve difficulties
- Adjudicative processes: an outcome determined by a third party, such as litigation or arbitration
What are the advantages of Alternative Dispute Resolution (ADR)?
- Speed – takes less time than lengthy court proceedings following the Civil Procedure Rules
- Informality – outside a court
- Greater opportunity for negotiation
- Cost – less money spent on professional fees for litigation
- Quality of decision making – as outcome or award can be made by a surveyor rather than a judge
- Confidentiality
