Conflict Avoidance And Dispute Resolution

Question 1

How can conflicts be avoided between parties?

Answer 1

• clear contract documentation
• Unambiguous tender documentation
• Communication and listening skills

Question 2

If a conflict occurred, how would you deal with it?

Answer 2

• politely, professionally and respectfully
• request a face-to-face meeting to begin negotiations in order to resolve

Question 3

In your opinion, what is the cause of most disputes?

Answer 3

• commercial aspects and disagreements
• Unclear or conflicting specifications and drawing within scope of contract
• Teams being under pressure, leading to poor or rushed decisions

Question 4

What is dispute resolution?

Answer 4

Dispute resolution is a method of resolving a conflict, dispute or claim

Question 5

What does ADR stand for?

Answer 5

• Alternative Dispute Resolution
• refers to the processes and alternatives to the traditional methods of dispute resolution, such as litigation or arbitration

Question 6

What are the main forms of ADR available?

Answer 6

• Negotiation
• Mediation
• Adjudication

Question 7

If a dispute were to occur, what court would the dispute be referred to?

Answer 7

• The Technology and Construction Court
• The TCC would not normally handle cases with the value of less than £250k

Question 8

What would indicate the success of a final account negotiation?

Answer 8

All parties come away happy, within the clients budget, and the negotiation is resolved in a timely manner

Question 9

What is mediation?

Answer 9

Parties agree on an independent, third-party neutral person to facilitate discussions between them in an attempt to reach a settlement

The power of his settlement remains of the parties and the process is non-binding

The mediator does not award a winner

Question 10

Can you explain what a negotiation is?

Answer 10

Negotiation is a process where parties work out between them how to resolve the issue that has arisen

The process requires cooperation of both parties and is a non-binding process

Question 11

What is conciliation?

Answer 11

Conciliation is similar to mediation, being a non-binding process, where a third-party facilitates conversations in an attempt to agree

The conciliator prepares a recommendation to resolve the dispute

Question 12

What is an expert witness?

Answer 12

A person who has extensive experience and knowledge in a field, who can make their expertise available to court or other bodies

Question 13

What is expert determination?

Answer 13

Where parties to a contract can refer their disagreement to an impartial third-party expert

This process is more simple and cheaper than arbitration or litigation

The process is binding

Process has been essentially made redundant due to the introduction of Adjudication

Question 14

What are the advantages and disadvantages of expert determination?

Answer 14

Advantages:
- Confidential procedure
- Reduces cost and time
- Less adversial than formal dispute resolution

Disadvantages:
- Less suited for factual disputes
- limited grounds of appeal

Question 15

What is adjudication?

Answer 15

Adjudication was developed to allow construction contract disputes to be resolved more quickly and cost effectively than formal dispute resolution procedures

The aim of adjudication is so parties can come to a solution so they can resume and continue the work efficiently

Question 16

Can you explain how the adjudication process works in terms of time frames?

Answer 16

• Conserve a notice to the other party for their intention to refer to adjudication
• With seven days of the notice of adjudication, the referring party must serve their statement of case (the referral - the why)
• The referral must contain detailed explanation of the referring parties claim, along with any supporting documentation
• Within these seven days, the referring party must also secure the appointment of an adjudicator
• From day seven, the adjudicator will be appointed, and will set out a timetable for information to be gathered for analysis
• The adjudicator must make his decision within 28 days of the referral

Question 17

What is the maximum period for adjudication? Can this be extended?

Answer 17

Maximum period is 28 days

Can be extended up to 42 days by mutual agreement of both parties

Question 18

Is there an appeal process with adjudication?

Answer 18

There is no appeal process

However, parties can refer the same dispute to litigation or arbitration

Question 19

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

Answer 19

Adjudication is legal right under construction contract due to the construction act addendum 2009

Question 20

Who pays for adjudication?

Answer 20

Both parties are jointly liable to pay the adjudicator fees, however, the adjudicator can decide who pays the fees

Question 21

Is the adjudication process binding?

Answer 21

Yes

However, the decision may not be binding if the adjudicator acted outside their jurisdiction or was biased towards one party

Question 22

What is arbitration?

Answer 22

Arbitration is essentially a lawsuit without court involvement.

Parties agreed to submit their dispute to arbitration rather than to pursue a lawsuit in court

The process is legally binding

Arbitration can only be referred to if there is an arbitration clause in the contract

Question 23

What are the advantages and disadvantages of arbitration?

Answer 23

Advantages:
- Process is private
- Quicker in comparison to litigation
- Parties can agree on an arbitrator with relevant expertise in the matter

Disadvantages:
- Parties must bear the costs of both the arbitrator and venue
- Limited appeal rights
- could be considered uneconomical for smaller claims

Question 24

What is litigation?

Answer 24

Litigation involves claims in civil court

The nature, complexity, and value of the dispute will determine which court will hear a particular dispute

Question 25

What are the advantages and disadvantages of litigation?

Answer 25

Advantages:
- Judges can compel parties to comply with time frames
- judges have the power to make interim relief to protect the parties decision pending final judgement
- There are defined rights of appeal in cases where errors of fact or law are made

Disadvantages:
- Costly
- Public process
- Longer period to obtain judgement
- Judgement will be subject to appeal

Question 26

Are you aware of any guidance and conflict avoidance published by the RICS?

Answer 26

I am aware of the RICS guidance on conflict avoidance and dispute resolution

Question 27

What if negotiation finished and you could not reach an agreement with the contractor?

Answer 27

• I will consult the client to present the issue and see what their thoughts are
• I would potentially make an assessment of the cost under NEC
• I would not display the contractor from proceeding to ADR
• The client may also wish to proceed to ADR

Question 28

How is NEC implemented to avoid conflict?

Answer 28

• language in the contract is to promote collaboration and cooperation between parties
• Timescales are implemented to ensure issues are dealt with swiftly
• The contract executes an early warning system to have a collaborative approach to risk

Question 29

How can JCT be used to avoid conflict?

Answer 29

The GCT constructing excellence contract uses partnering to promote collaboration and integrated working

Question 30

What are the available conflict avoidance options under NEC and JCT?

Answer 30

• NEC = Adjudication or Arbitration. NEC4 also allows contractor & client to nominate senior representatives to try and negotiate before formal proceedings are undertaken.
• JCT allows for Adjudication and Arbitration.