Conflict Avoidance and Dispute Resolution Flashcards
(17 cards)
What is conflict?
Where there is disagreement between the parties
What are some of the methods to avoid conflict on a construction project?
- Clear contract documentation
- Good record keeping
- Good project management
- Good payment practice
- Regular and accurate reporting
What do you do if conflict arises?
Work closely with the individual to try resolving it through communication and negotiation
What are the key success criteria of a final account negotiation?
- No disputes, all parties come away happy
- Final account is within the budget
- The final account is agreed in a timely manner
What are the common causes of disputes?
- Poor contract drafting; ambiguity in understanding.
- Uncollaborative behaviours
- Commercial drivers. i.e. contractor’s overheads have increased and are seeking to recover potential losses/ or increase profit.
What is dispute resolution?
The formal process of resolving contractual disagreements among the parties.
What are Alternative Dispute Resolution (ADR) procedures?
- Negotiation
- Mediation
- Conciliation
- Adjudication
- Arbitration
What are some of the dispute resolution procedures you are aware of from the contracts you have worked on?
- NEC: - In the first instance this is to be taken to Adjudication if clauses W1, W2, W3 apply. If dissatisfied, this can be taken to arbitration or litigation, as per the contract data part 1.
- ICE: - Clause 66A specifies mediation or conciliation, clause 66B specifies Adjudication and clause 66C stipulates Arbitration.
- FIDIC: - Clauses 20.4 and 20.6 mentions Dispute Adjudication Boards and Arbitration.
Where do disputes go to for litigation in the UK and KSA?
In the UK it is at the Technology and Construction Court (TCC) who typically deal with cases above £250k.
In KSA, cases referred for litigation is handled by the courts in Saudi Arabia in line with Shariah Law.
What is Negotiation?
Process of the parties coming together to discuss, negotiate and amicable agree (win - win) on the resolution of the dispute.
What is Mediation?
A third party is appointed to bring the parties together, guides them to an outcome and does not make a decision.
What is Conciliation?
Where a Conciliator is appointed to examine the dispute, bring the parties together and make a decision in the form of a recommendation. This decision or recommendation is not binding.
What is Adjudication?
A swift ADR procedure, outlined in contracts, can be invoked at any time to obtain a binding decision.
What is the timeline of Adjudication?
An Adjudicator is appointed within 7 days of receiving notice of dispute. The Adjudicator is then given 21 days to come to a decision, and if needed can request an extension of time.
In total, it takes approximately 28 days to arrive at a binding decision.
Who bears the cost of Adjudication?
The Adjudicators fees are typically non recoverable under standard forms of contract. The contract will specify who bears the cost.
What is Arbitration?
It is a private form of dispute resolution, where an arbitrator is appointed to review the dispute and come to a binding decision.
What is Litigation?
When the courts hear the dispute, the judge issues a final binding decision that is publicly accessible.
