Conflict Avoidance, Management and Dispute Resolution

Question 1

What legislation does adjudication come from?

Answer 1

Housing Grants, Construction and Regeneration Act 1996

Question 2

Can you explain the process of mediation? How long does it take?

Answer 2

One day, independent guide discussion to resolve dispute between parties, parties resolve disputes

Question 3

How might a conflict be avoided? Name some steps that should be taken?

Answer 3

Clear documents, project directory, communication links confirmed, aware of roles, dispute resolution procedure determined at outset, regular programme / cost reviews, clarity, partnering

Question 4

Why might clear contract documents prevent a dispute?

Answer 4

It would make it clear that a party had not fulfilled their obligations and therefore the party would not be able to dispute or state the requirements were not known

Question 5

What is ADR? Name the different forms of ADR?

Answer 5

Forms of dispute resolution for disagreeing parties who cannot come to an agreement short of litigation.

Negotiation, mediation, conciliation, expert determination, dispute boards, adjudication, arbitration

Question 6

How does mediation and conciliation differ?

Answer 6

Conciliation - an expert is appointed to resolve a dispute by convincing the parties to agree upon an proposal.

Mediation - A process of settling disputes by an independent third party who assists the parties to reach a common outcome.

Question 7

What is adjudication? Why was it introduced?

Answer 7

Adjudication is the legal process by which an arbiter or judge reviews evidence and argumentation, including legal reasoning set forth by opposing parties or litigants, to come to a decision which determines rights and obligations between the parties involved.

It was introduced to provide a quicker and more cost effective dispute resolution framework than litigation or arbitration.

Question 8

What are the timescales associated with adjudication? How long to appoint an adjudicator and how long does it take?

Answer 8

7 days to appoint an adjudicator
28 days for a decision to be reached
14 day extension if parties consent

Question 9

What are the pros and cons of adjudication?

Answer 9

Final decision, majority accepted, quick, rarely lengthly legal submissions.

Not necessarily final as can be heard in court, no testing of evidence, not as quick and cost effective as softer forms.

Question 10

What are the pros and cons of mediation?

Answer 10

Parties resolve, flexible outcome, confidential, not compulsory, quick.

Difficult if unwillingness to cooperate, may not resolve, parties may withhold information, not binding.

Question 11

What is the RICS DRS?

Answer 11

provides a range of alternative dispute resolution services, e.g. adjudication services/ACRE mediation (analytical, commercial, restorative, expert)

Question 12

What RICS guidance should be referred to in a dispute?

Answer 12

RICS Conflict Avoidance and Dispute Resolution in Construction Guidance Note

Question 13

Why is preventing a conflict of interest important in avoiding a dispute?

Answer 13

• If noticed later in a project it could lead to a dispute.
• Important to notice early and gain informed consent or not act if appropriate

Question 14

Is adjudication legally binding?

Answer 14

The outcome of adjudication is legally binding on the parties, unless and until the parties decide to sort of escalate that dispute in either court proceedings or arbitration

Question 15

Why are the different types of conflict of interest. Give an example of how this relates to conflict avoidance?

Answer 15

• Own interest conflict
• Party conflict
• Confidential information conflict

It relates because if a conflict of interest is identified early on it can prevent a dispute at a later date.

Question 16

What are the different forms of dispute resolution?

Answer 16

Negotiation, mediation, councilliation, adjudication, arbitration, litigation, dispute boards, expert witness

Question 17

Name some sensitive issues that can lead to disputes?

Answer 17

• Programme delays
• H&S issues
• Quality issues
• Costing of variations
• Not communicating with adjoining owners

Question 18

Can you provide examples of RICS DRS services?

Answer 18

• Mediation (e.g. ACRE)
• Adjudication
• Expert witness referral

Question 19

What is the difference between dispute resolution and alternative dispute resolution?

Answer 19

ADR is generally faster and less expensive than going to court. ADR gives parties in dispute the opportunity to work through disputed issues with the help of a neutral third party.

Question 20

How can early communication prevent a dispute?

Answer 20

• It can resolve the issue quickly.
• Both parties understand eachother’s needs in the dispute.
• Early communication will help prevent the relationship deteriorating.
• Communication may lead to both parties giving concessions to end the dispute.

Question 21

What are the pros and cons of arbitration?

Answer 21

Both parties to agree to arbitrator, quicker and more cost effective than litigation, private, agreeable outcome.

Lack of transparency, little testing of evidence, not as quick and cost effective as softer forms.

Question 22

What is the main RICS guidance for dispute resolution? What is included?

Answer 22

RICS Conflict Avoidance and Dispute Resolution in Construction Guidance Note - level 1 knowledge, level 2 doing, level 3 advising.

Covers conflict avoidance, dispute resolution, ADR, standard form contracts, dispute escalation, interim valuations and claims

Question 23

How does obtaining informed consent prevent a conflict?

Answer 23

being transparent at outset and preventing a dispute at a later date.

All parties are aware and then it is their decision if they want to proceed or not, rather than not inform them which could then cause a dispute.

Question 24

What are the three pillars of dispute resolution?

Answer 24

Negotiation
Mediation
Adjudication

Question 25

What are early warning systems and how can they prevent a dispute?

Answer 25

Contracting parties can adopt measures that provide early warning of emerging issues, such as reduced communication which could signal potential insolvency. Early warning signs help avoid dispute and can be initiated through regular reporting, independent reviews and open and transparent communications between contracting parties.

Question 26

What are the basic principles of risk management? How can it help avoid a dispute?

Answer 26

- Risk Identification - Risk Analysis - Response Planning - Risk Mitigation - Risk Monitoring

Question 27

Identify some different partnering techniques? How can they help avoid a dispute?

Answer 27

- Strategic Partnering facilitates the development of a long-term relationship amongst the project team: contractor, designer, consultant, clients, and subcontractors. Generally, large clients with a high volume of work will use strategic partnering when they require a fast turnaround. - Project partnering is formed around freestanding and non-binding partnering agreements or charters for single projects. - With partnering, the linear contractual chain is replaced by a desire to solve issues on a collaborative and equal footing. With this approach, all parties are involved with key decisions and can provide specialist input when required.

Question 28

What is a Dispute Resolution Board? What are the pros and cons of a DRB?

Answer 28

A DRB is where the contract will provide for three members, two technical and one legal, usually the chairman. This formulation allows for technical disputes to be fully understood and resolved without the need for external advice, and similarly disputes involving or including legal issues being capable of resolution without external advice. The idea is for the board to be able to deal with any dispute that arises. The three-member DRB will visit the project regularly and deal with any difficulties that have arisen. The advantage to the parties is that the DRB gains an ongoing knowledge of the project as the members are exposed to the facts of any emerging disputes at a very early stage.

Question 29

What is a dispute resolution advisor?

Answer 29

In its simplest terms the DRA is a neutral who is contractually empowered to perform any number of functions. For example, the DRA may participate in “meet and confer” meetings to assist the parties in an early resolution of a dispute (“Real Time” mediation).

Question 30

What is the RICS guidance for expert witnesses?

Answer 30

RICS Surveyors Acting as Expert Witnesses 4th Ed 2023

Question 31

How do the parties to a dispute appoint an adjudicator if neither party can agree?

Answer 31

If agreement cannot be reached, the contract will normally state the Nominating Body to be used to appoint an adjudicator.

Question 32

Name the court that deals with construction disputes?

Answer 32

Technology and Construction Court

Question 33

What is CAP?

Answer 33

The RICS Conflict Avoidance Process is a government-endorsed procedure that can be written into contracts to help parties involved in construction or engineering projects to resolve disagreements out of court. It encourages parties to resolve problems at the time of the event, to nip them in the bud before they escalate to drawn-out, damaging disputes.

Question 34

If you cant resolve a dispute in a meeting what should you do?

Answer 34

Go away and reflect, discuss with line manager and return to discuss. If still cant agree then escalate.

Question 35

Where should you go to appoint an adjudicator? What bodies are there?

Answer 35

Normally stated in contract. Could be RIBA, RICS or otherwise.

Question 36

Name some negotiation techniques?

Answer 36

- Competition (win-lose) - Collaboration (win-win) - Compromise (split the difference) - Accommodation (lose-win) - Avoidance (lose-lose)

Question 37

What is dispute resolution?

Answer 37

Actions to resolve contractual disagreements between parties.

Question 38

What is a redress scheme?

Answer 38

A scheme which allows consumers to escalate a complaint they have against the member of the scheme. It aims to settle the unresolved complaint.

Question 39

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

Answer 39

- Cost in proportion to a claim - Timescales involved - Impact on reputation and relationships

Question 40

What enforces the requirement for a building contract to provide provisions for adjudication? What if a contract does not contain adjudication provisions?

Answer 40

- Housing Grants, Construction and Regeneration Act 1996. - The Scheme for Construction Contracts will apply in its entirety.

Question 41

Provide some advantages for arbitration and some advantages for litigation?

Answer 41

Arbitration - Advantages are that it is a private process, parties have flexibility, arbitration awards generally easier to enforce Litigation - Advantages are that parties do not pay for court or judge, process can deal with multi-party disputes, civil procedure rules aim for accessibility, speed and efficiency.