Conflict Avoidance Flashcards
(15 cards)
What is a Conflict?
A serious disagreement between 2 parties.
What are the main reasons Disputes occur?
Contractual disputes
Design disputes
Disagreements over value
Time disputes
What does Conflict Avoidance Require?
Clear and concise drafting of contracts.
Taking a proactive conflict avoidance risk analysis.
Managing all parties expectations.
Negotiating contractual obligations.
Keeping good records with sufficient detail.
What are the Main Forms of Dispute Resolution?
Negotiation:
- Problem-solving efforts of the parties themselves.
Mediation:
- A third party intervention
- Not legally binding to a decision
Adjudicative process (Arbitration/Arbitration/Litigation):
- A binding outcome determined by a third party
- Such as litigation or arbitration
What is ADR?
Alternative Dispute Resolution
- Dispute resolution techniques that fall outside the scope of court litigation.
What are the Forms of ADR?
Mediation
Arbitration
Adjudication
Independent Expert Determination
What is Mediation?
Parties agree on a mediator to facilitate discussions between them
Decision remains with the parties
Confidential and informal
What is Arbitration?
Arbitrator is appointed in a quasi-judicial role
Parties are bound to the decision
Arbitrator has specialist knowledge
The decision can only be overturned by the Court of Appeal
What is Adjudication?
Simpler form of Arbitration
Adjudicator selected by the parties
Adjudicator uses their own knowledge to reach a decision
The decision is binding until litigation or arbitration
Strict timescales require the Adjudicator to make a decision within 28 days.
What is Independent Expert Determination?
An individual third-party expert is appointed by the parties
They use their own specialist knowledge of information provided by the parties
The parties are bound by the decision
What is Litigation?
A civil claim in court
What is acting as an Expert Witness?
When a surveyor provides evidence to a judicial body as an expert witness.
The expert witness’ duty of care is to the court system not the clients.
Who would you name as an Appointed Adjudicator in a Contract?
RICS Adjudication Service
They will nominate an expert
What is CAP?
RICS Conflict Avoidance Process (CAP)
Can be written into contracts to help parties resolve disagreements outside of court.
What does without prejudice mean?
Communication in a genune attempt to settle a dispute connot be used as evidence in court
