Conflict Avoidance, Management and Dispute Resolution (Level 1) Flashcards
What is a conflict?
A conflict is a state of disagreement on ideas, facts or beliefs
When do disputes arise in your role?
Negotiating fees
Decisions on strategy
Assessing value
Assessing risks
Why is good conflict management important?
- Ensure legal compliance and maintain ethical standards
- Ensure you are providing the best possible service to your client
- Maintenance of business relationships
What is partnering or alliancing?
An alliance is a collaboration between individual companies for mutual profit
A partnership is a merging of individual interests for mutual profit
How can good client management reduce conflict?
Clear understanding of needs and objectives ensures you can act in the best interest of the client and avoid disagreement
Management of expectations – if you are clear from the outset then the client is less likely to disagree
Personable approach – makes the client know you care and likely to be more understanding
What are the three pillars of dispute resolution?
- Negotiation
- Mediation
- Adjudication
What is negotiation?
Negotiation
- process of working out an agreement by direct communication. It is voluntary and non-binding
e.g negotiating contract terms
What is mediation?
Mediation
- private, informal process in which parties are assisted by one or more neutral third parties in their efforts towards settlement
e.g dispute in a development contract
What is adjucidation?
Adjudication
- Adjudication is a 28-day, short-form dispute resolution procedure that aims to resolve the disputes without the need to undertake long and costly court procedures and therefore assist cash flow
- It was introduced by a key piece of legislation in the construction industry, which is called the Housing Grants Regeneration and Construction Act 1996
How do mediation and conciliation differ globally?
Mediation aims to reach an agreement between parties and it’s enforceable by law.
Conciliation aims to come to a settlement agreement and it is executable as a decree of civil court
Mediation is a more informal process than conciliation. Unlike a conciliation commission, the mediator does not have the authority to issue formal orders or decisions.
What is Alternative Dispute Resolution (ADR)?
Alternative dispute resolution (ADR) refers to the different ways people can resolve disputes without a trial. Common ADR processes include mediation, and arbitration
Why might you prefer to pursue ADR rather than litigation through the Courts?
Cheaper
Quicker
More confidential
What would you do if you identified a perceived/actual conflict of interest?
- Assess the nature or type of conflict in place
- Report the conflict to the client, my line manager and the compliance team
- Review whether there is a way for the conflict to be managed appropriately, if there is ask the client for informed consent to proceed
- If not reject the instruction
What is the difference between an arbitrator and an independent
expert?
Arbitrator
- Arbitrators are governed by the Arbitration Act 1996, which sets out the requirements for their role and proceedings.
- An Arbitrator ‘Awards’
Independent Expert
- There is no legislation governing the role of an Independent Expert. The role is instead governed by the lease, together with the RICS guidance; Independent - Expert Determination (1st Edition)
- Independent Expert issues a ‘Determination’
What is the Technology & Construction Court and what is its role?
Technology and Construction Court is a specialist group of courts, part of the Business and Property Court of the High Court of Justice, including both the High Court and the County Court.
The Technology and Construction Court handle disputes about buildings, engineering and surveying.
What value cases does the Technology and Construction Court usually deal with?
Don’t normally handle cases with a value of less than £250,000 unless there is a good reason, eg the case involves a new or difficult point of law or the case is international.
What does an NEC contract set out in relation to dispute resolution?
NEC Contract
Two tier approach
- First step is adjudication
- Second step is arbitration or litigation
What does a JCT contract set out in relation to dispute resolution?
JCT Contract
Refers to five methods of dispute resolution: negotiation; mediation; adjudication; arbitration; and legal proceedings.
One of these methods, adjudication, is a statutory right, and if one party wishes to use this method, the other must concu
Explain the role of the Civil Procedure Rules (CPRs)
Civil Procedure Rules are a procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.
What governs dispute resolution during insolvency or bankruptcy
proceedings?
Insolvency Act (1986)
Enterprise Act (2002)
What is a Dispute Review or Recommendation Board (DRB)?
DRBs provide a confidential forum in which difficulties or disputes can be resolved. They are not set up to apportion blame but rather to resolve issues that have arisen in a way that allows the project to proceed smoothly
What are the relevant timescales for adjudication?
The Adjudicator is to reach their decision within 28 days, following the service of the Notice of Intention to Adjudicate.
This can be extended by 14 days with the consent of the Referring Party
Which Act governs adjudication?
Construction Act (1996) - allows any party to a construction contract in the UK to refer a dispute, at any time, to a 28-day procedure under which the matter will be decided by an independent adjudicator.
What is the basic principle of adjudication?
The adjudicator’s decision is binding and enforceable unless and until the dispute is resolved by litigation/arbitration or by agreement of the parties
