Conflict Avoidance, Management and Dispute Resolution Procedures

Question 1

What are the different ADR processes?

Answer 1

Mediation
Adjudication
Arbitration

Question 2

What is mediation?

Answer 2

Mediator shuttles between the two parties on a location, attempts to achieve a resolution.
Not legally binding until both parties agree that it is

Question 3

What is adjudication?

Answer 3

• 28 day process
• Adjudicator makes decision, “interim binding” on parties until resolved by legal proceedings, arbitration
• “Pay now, argue later”

Question 4

What is arbitration?

Answer 4

• Arbitrator/panel makes an Award after studying evidence submitted
• Like litigation, but private
• Award is legally binding

Question 5

Which of the 3 ADR process are legally binding?

Answer 5

• Mediation is only legally binding after both parties agree it is
• Adjudication is “interim binding” until later resolved by other means
• Arbitration IS legally binding

Question 6

What are the “three pillars of dispute resolution”?

Answer 6

• Negotiation (problem-solving efforts of parties themselves)
• Mediation (or 3rd party intervention)
• Adjudication/Arbitration/Litigation

Question 7

Why is adjudication so prevalent in construction?

Answer 7

It is a statutory right under the Construction Act 1996

Question 8

Do parties have to adjudicate a dispute before going to court?

Answer 8

Depends on the contract: NEC = “yes”.
Otherwise, no, but courts will want to see efforts to resolve dispute via ADR.

Question 9

What do the RICS produce on conflict avoidance?

Answer 9

A Guidance Note - Conflict avoidance and dispute resolution in construction
(part of the Black Book)

Question 10

What are the various negotiation techniques?

Answer 10

• “Assertive”: hard negotiator. May not value the relationship much
• “Accommodating”: soft. Preserving relationships above results.