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06 Conflict avoidance, management and dispute resolution procedures > Conflict avoidance, management and dispute resolution procedures > Flashcards

Conflict avoidance, management and dispute resolution procedures Flashcards

1
Q

What are the three pillars of negotiation? (NMA)

A

Negotiation – Problem solving between the parties
Mediation/Conciliation – Third party intervention which is not binding
Adjudication – Third party intervention which is binding

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2
Q

Name some conflict avoidance processes?

A
  • Good Management
  • Clear Contract Documentation & Good Payment Practice
  • Record Keeping, reporting and proactivity
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3
Q

What is a dispute?

A

Where two or more parties disagree on something.

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4
Q

What is the scheme for construction contracts?

A

Adjudicative rights to parties of a contract that do not comply with the requirements of the construction act.

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5
Q

What are the different techniques of conflict avoidance?

A
  • Confronting= collaborative, confront the issue rather than each other
  • Compromising= give and take
  • Smoothing= more accommodating, involves sacrifice.
  • Forcing= force your view to complete disregard of the other view
  • Avoiding= postponing.
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6
Q

If you cannot resolve an issue during the meeting what would you do?

A

I would deal with a dispute by:
• Suggest that the issue be taken which is avoidance and postponing the conflict.
• This allows actions to be agreed to ensure that the information has been provided and digested by both parties.
• I would call each party separately and discuss their thoughts prior to arranging a follow up meeting.
• Sometimes it is not possible for everyone to be happy with a decision.
• I would speak to the unhappy party privately and seek commitment that their performance would not be affected.

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7
Q

How are disputes avoided?

A
  • Robust tender and contract documentation.
  • Controlled change.
  • Informed procurement strategies.
  • Sensible risk allocation.
  • Appropriate financing.
  • Pro-active project management.
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8
Q

What are the types of Dispute Resolution?

A
  • Negotiation
  • Mediation and Conciliation
  • Expert Determination
  • Adjudication
  • Arbitration
  • Litigation
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9
Q

What are ADR techniques?

A

Alternative Dispute Resolution (any technique that is not litigation or arbitration.)
Advantages of ADR:
• Faster and less cost
• Informality - outside of court.
• Greater opportunity for negotiation.
• Quality of decision making “ as its made by experts in the field not judges.

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10
Q

What type of ADR is most popular within the construction industry?

A

Adjudication.

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11
Q

What does JCT recommend for ADR?

A

The methods of dispute resolution are referenced in the Articles:
• Mediation
• Adjudication (adjudicator can be named in Contract Particulars)
• Arbitration (Appointing body can be named in Contract Particulars)

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12
Q

What is a conflict?

A

When two or more parties have a difference of opinion

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13
Q

Advantages of using dispute boards?

A

Dispute Board will have been selected for their knowledge and expertise before a dispute has arisen.
• Flexibility
• Prevention of Disputes
• Understanding

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14
Q

Can you name some of the RICS approved ADR / Ombudsman bodies ? Where would you find this information ?

A
  • Centre for Effective Dispute Resolution
  • The property Ombudsman
  • The property Redress Scheme
  • Financial Ombudsman Service
  • Local Government Ombudsman
  • Adjudicators Office

Contained within the RICS Guidance Note - ‘Complaints Handling’ 1st Edition 2016

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15
Q

What Dispute Resolution method is named in your contract?

A

Adjudication

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16
Q

What do you understand by Statutory?

A

Statutory Law (Statue Law) is set down by legislate.

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17
Q

Talk me through how you would go about negotiating something?

A

Prepare, pre-determine, focus on the bigger picture, negotiate a win-win, never accept first offer, negotiate small deals before the big ones.

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18
Q

What are the three formal forms of dispute resolution?

A
  • Arbitration
  • Litigation
  • Adjudication
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19
Q

What is the conflict avoidance pledge CAP ?

A

Conflict avoidance pledge (CAP) - deal with emerging disputes at an early stage.

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20
Q

What statute does Arbitration sit under?

A

The Arbitration Act 1996

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21
Q

Who set up the property ombudsman ?

A

Approved by the UK government to help consumers settle their disputes with property businesses such as estate agents, letting agents and property management agents.

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22
Q

What does without prejudice mean ?

A

Cannot be used as evidence in court proceeding or criminal proceedings.

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23
Q

What is the meaning of disclosure ?

A

Mechanism allowing a party in arbitration to see a file of the other party.

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24
Q

Why is ADR required in contracts?

A

The Housing Grants, Construction and Regeneration Act 1996 (The Construction Act) stipulates:
• All contracts should allow for adjudication and should follow the adjudication procedure
• Any party is permitted to refer the dispute to adjudication

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25
Q

What if the contract doesn’t have ADR Procedures?

A

(The Construction Act), both parties have a statutory right to adjudication. If it does not qualify, then the Scheme for Construction Contracts applies.

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26
Q

What is an expert witness ?

A

Someone with specialist skills, knowledge, or experience who testifies in court about what s/he believes has happened in a certain case based on those specialist skills, knowledge or experience.

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27
Q

Who do they have a duty to ? (Expert Witness)

A

The courts

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28
Q

What is the responsibility of an expert witness ?

A

independent, impartial, and unbiased evidence

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29
Q

What does this Act (The Housing Grants, Construction and Regeneration Act 1996 (The Construction Act) ) require in terms of certifying contractor’s requests for payment and invoices etc?

A

“due date” for each payment;
“final date” for each payment;
“payment notice” to be given within 5 days of the due date, stating what is to be paid and the basis on which it is calculated.

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30
Q

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

A

The Housing grants, Construction and Regeneration Act 1996. (so called Construction Act)

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31
Q

How do you avoid conflict on a project?

A
  • Tender information is clear, concise when tendering the project
  • if dispute, use a people approach first and try to negotiate an agreement.
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32
Q

What would you consider to select a form of dispute resolution?

A
  • The cost in proportion to the claim
  • The timescales
  • Business relationships and reputation
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33
Q

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

A

Both parties feel that negotiations were handled in a fair and reasonable manner and costs are agreed within cost report budgets.

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34
Q

What court are construction disputes heard ?

A

Technology and construction courts, nothing less than £250,000.

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35
Q

What criteria do RICS require of an ADR / Ombudsman ?

A

The ADR mechanism must be:
• well established
• independent of the firm or valuer
• transparent, accountable and consistent decision-making process

36
Q

What current challenges is Covid and/or Brexit bringing to Conflict avoidance, management and dispute resolution procedures?

A

Disjointed teams

Communication can come across negative in email.

37
Q

What does the abbreviation HGCRA strand for ?

A

Housing Grants Construction Regeneration Act 1996.

38
Q

What is dispute resolution?

A

Actions to resolve contractual disagreements between parties.

39
Q

What is Expert Determination?

A

Third party will make a binding decision on them.

40
Q

What is included in the RICS Conflict Avoidance and Dispute Resolution Guidance Note (Part of the ‘Black Book’)?

A
  • Conflict avoidance processes
  • Three pillars of dispute resolution
  • Dispute resolution techniques
  • ADR
  • Standard form contracts
  • Conflict Avoidance
  • Dispute Resolution Procedures
  • Dispute Escalation Clauses
  • Interim Valuations and Claims
41
Q

What is the RICS dispute resolution service?

DRS

A

RICS Dispute Resolution Service (DRS) is the worlds oldest and largest in construction. Keeping cases out of the courts.

42
Q

What is conflict avoidance and conflict management?

A
  • Conflict avoidance = method of reacting to conflict.

* Conflict management = limiting the negative aspects of conflict.

43
Q

What are Negotiations ?

A

Dialogue to reach an agreement that satisfies both parties.

44
Q

What are the advantages of Negotiation?

A
  • Informal
  • Non adversarial – can help relationships
  • Private and usually quick
  • Usually inexpensive
  • Flexible, parties retain control.
45
Q

What are the disadvantages of Negotiation?

A
  • The compromise may not fully resolve the issue
  • Some wary of disclosing too much information.
  • Generally non-binding
  • Costs may not be recoverable
46
Q

What is Mediation ?

A

Negotiations with assistance of an impartial 3rd party person who has no power to impose an outcome. The mediators role is to facilitate a decision. When an agreement has been found, the parties can sign a document to the agreement.

47
Q

What are the advantages of Mediation?

A
  • Similar to negotiation but benefit of an impartial member
  • Non adversarial
  • Voluntary
  • Quick
  • Usually inexpensive
  • Flexible as parties retain control
  • Mediator can make the decision if parties agree
48
Q

What are the disadvantages of Mediation?

A
  • Mediator does not state specialist advice
  • Can be subject to delaying tactics
  • Costs may not be recoverable if no settlement is reached.
49
Q

What is Conciliation?

A

Similar to mediation but the goal is to reconcile through concessions= provide suggestions to resolutions.

50
Q

What is Arbitration ?

A
  • (3rd party arbitrator or panel)
  • The contract between disputing parties must contain written agreement to arbitrate
  • Covered by the Arbitration Act 1996
  • Binding and enforceable through courts
51
Q

What are the advantages of Arbitration?

A
  • Governed by Arbitration Act 1996
  • Private
  • Arbitrator is usually experienced in the field
  • Consensual in that the parties can decide timings etc.
  • Can call on witnesses
  • Outcome can amend the contract
52
Q

What are the disadvantages of Arbitration?

A
  • Expensive

* Can only be appealed on point of law/jurisdiction

53
Q

What is the process of Arbitration?

A

Commences with a notice to concur which provides for agreement of appointment failing which, an arbitrator is appointed by a nominating body. Three procedures: Documents only – 30 days, short hearing – 30 days, full procedure – no time limit.

54
Q

Who can be an Arbitrator?

A

An expert in their own right, who acts fairly and impartially to reach a decision.

55
Q

What are the forms of arbitration ?

A

Adhoc, short hearing and document only,

56
Q

What is Adjudication ?

A

Contractual procedure for ADR. Provided by a 3rd party adjudicator selected by the parties in dispute. The adjudicator is either named in the contract or the parties agree to a nominating body. Adjudication is subject to a strict timeline and the decision is based purely on documentary submission rather than investigating facts himself. The decision is binding unless revised by arbitration or litigation. The award of costs is as the discretion of the adjudicator unless stated otherwise in the contract. Can take up to 28 days.

57
Q

What are the advantages of Adjudication?

A
  • Private
  • Statutory Right
  • Adjudicator forms an impartial outcome based on the submission.
  • Decision within 28 days
  • Legally binding
  • Relatively flexible
  • Both parties are shown opposing evidence.
58
Q

What are the disadvantages of Adjudication?

A
  • Each party bears their own costs

* Adversarial

59
Q

Can you reject the adjudicators decision?

A

Yes, that party can then proceed to litigation or arbitration.

60
Q

Who appoints the adjudicator?

A

1) Specifically named in the contract particulars or:

2) Nominated by the nominating body listed in the contract particulars.

61
Q

What is statute adjudication?

A

Right to adjudication that is granted to all parties of a construction contract under the HGCR Act 1996.

62
Q

What is the Adjudication Process?

A
  • Notification of Adjudication from one party to another.
  • From receipt of notification, parties have up to 7 days to appoint the adjudicator.
  • Adjudicator will review parties cases, and make their decision within 28 days. (This can be extended to 42 days)
  • The adjudicator does not have the power to award costs, unless the parties agree to grant him this power.
63
Q

What are the time frames of Adjudication (JCT)?

A

Can take up to 28 days to complete, this can be extended to 42 days with agreement from both parties.

64
Q

Is Adjudication binding?

A

Binding unless and until they are revised by subsequent arbitration or litigation after practical completion, or by agreement between the parties (hence the term ‘pay now argue later’).

65
Q

What are the two types of mediation ?

A
  • Evaluative

* Facilitative

66
Q

What is Litigation?

A

Lawsuit within a court of law.

67
Q

What are the advantages of Litigation?

A
  • Binding but can be appealed

* Can deal with several claims at once

68
Q

What are the disadvantages of Litigation?

A
  • Adversarial and formal
  • Publicly exposed
  • Expensive
  • No influence over choice of judge or hearing details
69
Q

Why would you go for litigation?

A

Litigation allows you to bring multiple disputes to the table to be heard and can bring unwilling parties in.

70
Q

What are the differences between arbitration and litigation?

A

Litigation = multiple disputes v arbitration 1 at a time.

Litigation also only requires one parties consent to proceed + no maximum time to resolve.

The Arbitrator is also predetermined in the contract whereas you do not get a choice of the judge assigned.

71
Q

What is the difference between Mediation and Conciliation?

A

Them aim of mediation is to help the parties reach an amicable agreement.

Conciliator will create a settlement proposal.

72
Q

What is the difference between arbitration and adjudication?

A
  • Adjudication = before a judge Arbitration = informal third party (Arbitrator or a panel of Arbitrators).
  • Adjudication is a process that unfolds in court and therefore represents a court trial.
  • Arbitration, in contrast, is mostly voluntary, and does not take place within a courtroom setting. It is an alternative to litigation.
73
Q

Why might you choose Arbitration over Litigation?

A
  • Arbitration = more private, more control of Arbitrator/timings.
  • The arbitrator can amend the contract
  • Arbitration deals with any disputes arising out of or in connection with the contract.
74
Q

Why Might you choose Litigation over Arbitration?

A
  • Multiple disputes-msame case.

* Can bring unwilling parties into litigation

75
Q

What is Merrett v Babb (2001) ?

Big Shock to Industry!

A
  • Babb carried out valuation as an employee (Valuation negligent)
  • The original company no longer existed
  • Court ruled Merrett could pursue the individual – Babb – for the losses
76
Q

What is the TCC ?

A

Technology and Construction Court

77
Q

Is an Adjudicators decision enforceable ?

A

Yes this can be enforced via the TCC. (successful party must apply to TCC).

78
Q

Can you explain how mediation works?

A
  • Independent party agreed to facilitate discussion (Voluntary process)
  • Private session with each party
  • Not binding however confidential and without prejudice
  • Fastest and cheaper = Fees paid by both sides
79
Q

What are the most common ADR forms?

A
  • Mediation/Conciliation
  • Arbitration
  • Adjudication.
80
Q

Can you expand on what early warning systems are ?

A

Factors or red flags that illude to the requirement for dispute resolution at a later stage

81
Q

Why is it important to define the client objectives and your scope of works at an early stage ?

A

1) Client understand my involvement

2) Fees in relation to the works.

82
Q

How do you appoint a Adjudicator ?

A

Though the nominating body - RICS as per the contract

83
Q

Why might you pick mediation over adjudication?

A
  • Less formal
  • Cheaper
  • Not binding
  • Easier to run and quicker
84
Q

How can you avoid conflicts in the first place?

A
  • Good record keeping
  • Defined contract document
  • Early warning systems
  • Regular site visits
85
Q

Why might you want to keep disputes out of the courts ?

A

For costs and reputational damage

06 Conflict avoidance, management and dispute resolution procedures (1 decks)

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