Conflict Avoidance, Management and Dispute Resolution Flashcards
What is partnering?
- 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.
Why would robust tender process reduce the likelihood of disputes?
Reduces the likelihood of complaints
Tender price obtained for works that client wants
Why would robust contract documentation reduce the likelihood of disputes?
- 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
Which ADR method is preferable?
Mediation > adjudication > arbritration
Which ADR method would you use if the contract is silent?
Adjudication is a statutory right
How does the construction act reduce conflict within the industry?
- 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
What are the dispute resolution methods in JCT DB and IC 2016?
Mediation, adjudication, arbritration
Adjudication is default
What are the pros/cons of mediation?
- 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
What are the pros/cons of adjudication?
- 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
What are the pros/cons of arbitration?
- 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
What is litigation?
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
What are the timelines for adjudication?
- 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
Please can you give me some examples of how you avoid conflict in your day to day
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
Name non-binding forms of dispute resolution
Negotiation, mediation, conciliation
What are the different types of arbitration
a. Short hearing
b. Documents only
c. Full hearing
