Conflict Avoidance, Management and Dispute Resolution

Question 1

What is partnering?

Answer 1

• A concept that can be applied to procurement
• Co-operative relationship between business partners to improve performance in delivery
• Collaborative, non-adversarial
• Initiated through partnering charter, or two-party contract aligned to partnering.
• Reduces disputes, win-win culture, but can be abused.

Question 2

Why would robust tender process reduce the likelihood of disputes?

Answer 2

Reduces the likelihood of complaints

Tender price obtained for works that client wants

Question 3

Why would robust contract documentation reduce the likelihood of disputes?

Answer 3

• No conflicting information
• Responsibilities of both parties clear and understood, no conflict
• Client can be sure the contractor is going to carry out the works they want if the contract documents are tight

Question 4

Which ADR method is preferable?

Answer 4

Mediation > adjudication > arbritration

Question 5

Which ADR method would you use if the contract is silent?

Answer 5

Adjudication is a statutory right

Question 6

How does the construction act reduce conflict within the industry?

Answer 6

• Right for periodic payments
• No “IF” contracts, so contractor must pay subbies regardless of agreement between client and MC
• Right to suspend work on non payment promotes swift payment
• right to adjudication

Question 7

What are the dispute resolution methods in JCT DB and IC 2016?

Answer 7

Mediation, adjudication, arbritration

Adjudication is default

Question 8

What are the pros/cons of mediation?

Answer 8

• Where a third party mediator is appointed to assist in the negotiation of a resolution to a dispute
• Different types of mediation, e.g. evaluative, facilitative, settlement
• No power to award costs

Question 9

What are the pros/cons of adjudication?

Answer 9

• Contractual or statutory procedure for swift interim dispute resolution
• Provided by a third party adjudicator selected by parties in dispute
• Purely based on documentary submissions
• Decisions are binding unless and until revised by arbitration or litigation post-completion
• No power to award costs

Question 10

What are the pros/cons of arbitration?

Answer 10

• A procedure in which both sides agree to let an impartial third party decide the case
• May be a lawyer or expert in the field of dispute, or in some cases an arbitration panel
• Arbitrators “award” is legally binding and can be enforced through the courts. (Can award costs)
• No appeal except under special circumstances
• Arbitrators have powers to ascertain facts as opposed to just review submissions

Question 11

What is litigation?

Answer 11

The process of engaging in or contesting legal action in court as means of resolving a dispute.
Pros
- Highest quality
- Judges can compel parties to comply
- Defined rights of appeal in cases where errors of fact or law are made
Cons
- Expensive
- Longer time period to obtain judgement
- Public

Question 12

What are the timelines for adjudication?

Answer 12

• Notice of intention to adjudicate must be submitted by one party to the other
• Adjudicator appointed within 7 days of notice
• Decision made within 28 days of appointment (can be extended to 42)
• Adjudication is confidential and a statutory right

Question 13

Please can you give me some examples of how you avoid conflict in your day to day

Answer 13

In job:

• Understand personalities and tailor the way I communicate with those people
• Polite and courteous

In tendering

• Prepare robust tender docs
• Robust contract docs
• Follow JCT Tender Practice note + RICS Tendering Strategies guidance

Question 14

Name non-binding forms of dispute resolution

Answer 14

Negotiation, mediation, conciliation

Question 15

What are the different types of arbitration

Answer 15

a. Short hearing
b. Documents only
c. Full hearing

Question 16

What must be in place for arbitration to happen?

Answer 16

Must be a written agreement as part of the contract

Question 17

What are the timescales for arbitration?

Answer 17

Stage 1: Initiating the arbitration
Stage 2: Appointment of arbitrator
Stage 3: Preliminary meeting
Stage 4: Statement of claim and response
Stage 5: Discovery period
Stage 6: Interchange of evidence
Stage 7: Hearing
Stage 8: Award

Question 18

What courts are litigation trials held at?

Answer 18

Technology and Construction Court

Question 19

How long does adjudication take?

Answer 19

28 days from imforming adjudicator, can be extended to 42

Question 20

How would you avoid conflict in your day to day job?

Answer 20

• Act fairly
• Do not show bias
• Carry out work diligently, deliver within timescales etc