Conflict avoidance, Management and Dispute resolution procedures - Level 1

Question 1

Under JCT how long does an adjudicator have to make his award?

Answer 1

28 days from issue of the referral notice, but this can be extended to 42 if both parties agree

Question 2

How do you avoid conflict on a project?

Answer 2

Firstly, ensure that the tender information is clear, concise when tendering the project. i.e. a clear scope of works.
If there is a dispute, use a people approach first and try to negotiate an agreement before going legal.
As a last resort you should go legal.

Question 3

What is the difference between Mediation and Conciliation?

Answer 3

Mediation is a voluntary procedure, which involves the appointment of a third party mediator, who will help to facilitate negotiations between parties. Them aim of mediation is to help the parties reach an amicable agreement.
Conciliation is also a voluntary procedure, which involves the appointment of a third party Conciliator. The role of the conciliator is to also facilitate negations, however the Conciliator will create a settlement proposal.

Question 4

What is ADR?

Answer 4

ADR stands for Alternative Dispute Resolution, and was introduced as part of the Civil Procedure Rules 1998.
These Alternative Dispute Resolution procedures are:
o Negotiation.
o Mediation.
o Conciliation.
o Adjudication.
o Arbitration.
o Litigation.

Question 4

What Dispute Resolution method is named in your contract?

Answer 4

JCT = Adjudication.
NEC = Adjudication.
NFDC = Adjudication

Question 5

What are the Civil Procedure Rules 1998?

Answer 5

An improvement to the legal system, making it quicker, cheaper and easier to understand through the introduction of Alternative Dispute Resolution (ADR).

Question 6

What do you understand by Statutory?

Answer 6

Statutory Law (Statue Law) is set down by legislate.

Question 7

Talk me through how you would go about negotiating something?

Answer 7

Firstly I would prepare, as understanding you points fully is critical.
Secondly I would pre-determine what I can afford to give away, know my bottom line.
Focus on the bigger picture, don’t get stuck on one item.
Try to negotiate a win/win situation.
Never accept the first offer.
Finally, I would negotiate the small deals before the big ones.

Question 8

What is the Adjudication Process?

Answer 8

Notification of Adjudication from one party to another.
From receipt of notification, parties have up to 7 days to appoint the adjudicator.
Adjudicator will review parties cases, and make their decision within 28 days. (This can be extended to 42 days)
The adjudicator does not have the power to award costs, unless the parties agree to grant him this power.

Question 9

What is Litigation?

Answer 9

Litigation is the process of taking legal action, i.e. in the construction industry, it will typically be taken to the Construction and Technology Court.

Question 10

What is Arbitration?

Answer 10

The use of an Arbitrator to settle disputes.
* It is a private, judicial determination of a dispute by an independent third party.

Question 11

What is the Arbitration Process?

Answer 11

• The appointed Arbitration body must be notified, and they will appoint an Arbitrator.
• The main hearing will be held, whereby each side will present their version of the conflict, along with their evidence.
• The arbitrator will hen base their decision on what they believe to be fair and just, as they are not required to follow the law or reasoning of earlier case decisions.
• It is very difficult to appeal an Arbitration, they can only be appealed if it can be proved that the arbitrator was:
  o Corrupt.
  o Bias.
  o Arbitrator exceeded their power.

Question 12

How do you prepare for a negotiation?

Answer 12

I will always familiarise myself before the negotiation with what is being negotiated.
This will allow me to better understand my own argument, help me to pre-empt their argument/responses and allow me to better portray my point.

Question 12

What is a Dispute Board?

Answer 12

A group that is assigned to a project from inception. They are more a preventative form of dispute resolution rather than reactive, as they will try to identify where disputes may arise, and takes steps to ensure they do not happen.
Usually being used on Massive jobs.

Question 12

Why can disputes occur?

Answer 12

Poor performance of parties.
Uncontrolled change.
Complex contractual relationships / inadequate tender and contract documentation.
Inability or reluctance to pay.
Inappropriate procurement.
Pressure to start on site before design and or contract finalised e.g. Letters of Intent (LOI)

Question 13

How are disputes avoided?

Answer 13

Robust tender and contract documentation.
Controlled change.
Informed procurement strategies.
Sensible risk allocation.
Appropriate financing.
Pro-active project management.

Question 14

What techniques are available to resolve disputes?

Answer 14

The 3 Pillars of Dispute Resolution (Professor Green of Boston University)

Negotiation – problem solving efforts of the parties themselves.
Mediation or conciliation – 3rd party intervention makes a non-binding decision.
An adjudicative process – final outcome determined by a 3rd party who’s decision is binding.

Question 15

What are the types of Dispute Resolution?

Answer 15

Negotiation
Mediation and Conciliation
Expert Determination
Adjudication:
Arbitration:

Question 16

What is the difference between adjudication and arbitration?

Answer 16

Parties to a construction contract are entitled to adjudication under English law even if it is not stated in the contract (under the Local Democracy, Economic Development and Construction Act 2009 amendments in 2011 to the Housing Grants, Construction and Regeneration Act 1996).
In JCT contracts, where is no nominated adjudication body, it will be the RICS.
Adjudication is meant to be quicker and cheaper than arbitration or litigation, as adjudicators must reach a decision within 28 days. Adjudication decisions can be appealed and taken to arbitration or litigation.
Arbitration is an alternative to litigation. Arbitration can only be used if it is stated as being able to be used as an alternative to litigation in the contract. Where arbitration is allowed for in contracts, the President or Vice President of the RICS will select the Arbitrator.
The decision reached in arbitration is final and binding (as it is the equivalent to litigation), unless appealed and taken to the court of appeal.
Adjudication is confidential, unless appealed to arbitration / litigation where it could be public.
Arbitration is only confidential if parties agree for the case to be confidential.
Adjudication was designed to be more informal to enable fast and cost effective dispute resolution in contracts (under the Housing Grants, Construction and Regeneration Act 1996). If you are not happy with the adjudicator’s decision, you can go to court and enter arbitration. However with arbitration, unless you can go to the Court of Appeal, the decision is final and legally binding.
With adjudication you can take your problem to court if you’re not happy with the outcome. With arbitration you will have to go with arbitrator’s decision and you may not be able to go to court later if you don’t agree with the outcome.

Question 17

What are the Civil Procedure Rules and how do they apply to the construction industry?

Answer 17

The rules used by courts in England and Wales.
The CPR aim to improve access to justice by making legal proceedings cheaper, quicker and easier to understand for non-lawyers.
The CPR encourages the use of ADR to settle disputes outside of court.
Depending on the value of the case, the CPR prescribes different routes to manage the case:
o Small Claims Track – below £1K
o Fast Claims Track – up to £25K
o Multi Claims Track – above £25K

Question 18

What are ADR techniques?

Answer 18

This stands for Alternative Dispute Resolution and refers to any technique that is not litigation or arbitration.
Advantages of ADR:

 Speed – takes less time than court proceedings following the CPR.
 Informality – outside of court.
 Greater opportunity for negotiation.
 Cost – less money on professional fees that litigation.
 Quality of decision making – as it’s made by experts in the field not judges.

Question 19

What types is most popular within the construction industry?

Answer 19

Adjudication.

Question 20

What does JCT recommend for ADR?

Answer 20

The methods of dispute resolution are referenced in the Articles:
* Mediation
* Adjudication (adjudicator can be named in Contract Particulars)
* Arbitration (Appointing body can be named in Contract Particulars)

Question 21

What is conflict?

Answer 21

• When two or more parties have a difference of opinion.
• It can be positive or negative and lead to:
  o Arguments.
  o Negotiation.
  o Dispute resolution.
  o Innovation

Question 22

What are the different techniques of conflict avoidance?

Answer 22

CCSFA * Confronting – collaborative, confront the issue rather than each other. * Compromising – give and take. * Smoothing – more accommodating, involves sacrifice. * Forcing – force your view to complete disregard of the other view. * Avoiding – postponing.

Question 23

What is your for conflict avoidance style?

Answer 23

I generally confront the issue as I feel that this is the quickest and least adversarial way to avoid conflict, by dealing with the facts. I would be forcing when I believe the position is clear cut in order to protect the client.

Question 24

What conflict have you come across and how did you manage it?

Answer 24

Cost of a variation (Coventry Furniture Removal) * If email has not reached an agreement then have a meeting ensuring all information and parties who can make decision present. * Mediate session, trying to promote a non-adversarial atmosphere, allowing conflict of facts not feelings. * Apply the RICS professional and ethical standards, integrity and respect.

Question 25

If you cannot resolve an issue during the meeting what would you do?

Answer 25

I would deal with the above by: * Suggest that the issue be taken ‘off-line’ which is avoidance and postponing the conflict. * This allows actions to be agreed to ensure that the information has been provided and digested by both parties. * I would call each party separately and discuss their thoughts prior to arranging a follow up meeting. * Sometimes it is not possible for everyone to be happy with a decision. * I would speak to the unhappy party privately and seek commitment that their performance would not be affected.

Question 26

What does conflict avoidance involve?

Answer 26

Carefully and properly planning, with clarity, the strategy for executing a project as disputes often arise from ambiguity or an unclear definition of risk. It also is about adopting proactive conflict avoidance approaches such as carrying out a risk assessment; the production, updating and maintenance of a risk register as well as proactively managing the risks that are on that register; and adopting where appropriate a proper approach to partnering.

Question 27

What is dispute resolution?

Answer 27

It is about recognising when a dispute has arisen and appreciating the escalation of that dispute. In addition, it is understanding the range of techniques that might be available to resolve the dispute and seeking appropriate guidance before the client is placed at a disadvantage in respect of its position with the other party

Question 28

What is good management?

Answer 28

A surveyor who proactively manages a project for which he or she is responsible. Or the duty they have to their client in respect of their appointment for the avoidance of disputes.

Question 29

What can you do to provide good management?

Answer 29

Being proactive, planning and managing future work as well as raising early any issues of concern, provide confidence in the surveyor’s ability, enabling problems to be analysed and managed.

Question 30

Why is clear contract documents important?

Answer 30

Many disputes arise from ambiguities in contract documentation or argument as to whether there is a contract at all. Good documentation means capturing the specific details of the project and addressing the particular circumstances and risks of that project.

Question 30

What should the contract document do?

Answer 30

Identify the main areas of risk and set out a strategy for dealing with them clearly.

Question 30

What is partnering and alliancing

Answer 30

Building co-operation between the project participants in order to foster team working, problem solving and an emphasis on project delivery can assist in the avoidance of disputes

Question 31

What are the conflict avoidance techniques?

Answer 31

Good management Clear contract documentation Partnering and alliancing Good project management Good client management Good constructor management Good design team management Good payment practice Record keeping Regular reporting and proactivity

Question 31

what is good project management?

Answer 31

Means proactively managing all aspects of time, money and risk associated with the project. Simply allocating responsibility for any and all items to others is never adequate.

Question 31

What is good constructor management?

Answer 31

Having an objective understanding of the project, the contract and the programme of works. Requires regular objective assessments of progress and proactively dealing with issues arising during the project that fall within the chartered surveyor’s appointment. Problems and delay need to be dealt with at the time in a positive and objective manner.

Question 31

What is good client management?

Answer 31

A good understanding of the client’s objectives and the client’s approach to risk is also extremely valuable, as will be maintaining good lines of communication with the client.

Question 31

Why is good client management important?

Answer 31

This will assist not only in identifying how risks and issues are to be dealt with within the contract documentation and throughout the project, but will also build sufficient rapport to avoid a situation where the client incorrectly believes that the surveyor is simply in control of all aspects of the project.

Question 32

Why is communication important for good client management?

Answer 32

Good lines of communication will mean that the surveyor can warn the client about issues and problems that are within the surveyor’s services under the appointment with the client, and then discuss how those issues might best be dealt with

Question 32

What is Good payment practice?

Answer 32

Once payment provisions have been agreed, the valuation should be carried out and payments made promptly to help avoid conflict and dispute.

Question 32

Why is record keeping important?

Answer 32

disputes can be resolved by considering records that have been kept during the course of the procurement

Question 33

What should you record?

Answer 33

Labour, plant and materials Daily activity of site activities and progress reports Resource movement

Question 34

What is regular reporting and proactivity?

Answer 34

The regular monitoring of cost, progress and quality

Question 35

How can you ensure regular reporting and proactivity?

Answer 35

Minutes of meetings, progress reports, drop lines on programmes, and photos. Its important to raise and manage any issues that are causing delay, any increases in cost or quality problems as soon as is practically possible.

Question 36

What are the dispute resolution techniques?

Answer 36

Negotiation Mediation or conciliation Adjudicative process

Question 37

What is negotiation?

Answer 37

The process whereby the parties work out between them how to resolve any issues that have arisen. Power to settle the dispute rests with the parties.

Question 38

What is mediation or conciliation?

Answer 38

The parties agree on an independent, third-party neutral system to facilitate discussions between them, with the goal of reaching a settlement. The power to settle remains with the parties, but the process is led by the mediator.

Question 39

What is an adjudicative process?

Answer 39

The final outcome is determined by a third party who does impose a binding decision on the parties.

Question 40

What is an expert determination?

Answer 40

Parties agreed by a contract that a third party will make a binding decision on them, governed by contract. In most cases the decision of an expert will be final, and it will not be possible to appeal that decision.

Question 41

What is Adjudication?

Answer 41

Its under section 108 of the Housing Grants, Construction and Regeneration Act 1996 (HGRCA). If the Act applies to a contract then either party may request the appointment of an adjudicator to be made within seven days of serving a Notice of Dispute, and the adjudicator has 28 days from issue of the Referral within which to issue a decision.

Question 42

What is the arbitration process?

Answer 42

For arbitration to apply, the contract between the parties must contain a written agreement to arbitrate. Where it applies the parties might choose to refer to or incorporate an arbitration procedure. Alternatively, the arbitration can simply be covered by the applicable legislation

Question 43

What is litigation?

Answer 43

The courts have inherent jurisdiction to hear a dispute in respect of just about anything. The parties will have a right to refer their matter to an appropriate court. The procedure is governed by the Civil Procedure Rules, and the nature, complexity and value of the dispute will determine which court will hear a particular dispute.

Question 44

What are dispute boards?

Answer 44

Dispute boards sit somewhere between avoidance and dispute resolution. Dispute Review or Recommendation Boards (DRBs). Three dispute board members are appointed at the start of a project. They become familiar with the project by reviewing some of the project documentation and also regularly visiting the site during the course of the works. If and as issues arise they can be asked for their non-binding recommendation.

Question 45

What are dispute adjudication boards (DABs)?

Answer 45

Similar to dispute boards but they make formal written decisions which bind the parties in respect of any disputes that arise.

Question 46

What are alternative dispute resolution (ADR)?

Answer 46

Is alternative processes to litigation and arbitration. Aims to provide a faster and more economic dispute resolution procedure taking into account the circumstances of the dispute

Question 47

How are alternative dispute resolution (ADR) different?

Answer 47

Aims to provide a faster and more economic dispute resolution procedure taking into account the circumstances of the dispute while maintaining businesses relationships while resolving at the lowest cost and a fast sensible time. Confidentiality can be maintained and flexibility.

Question 48

How can parties resolve disputes through JCT contracts?

Answer 48

The parties can either select arbitration at the outset of the works, or court proceedings. The benefits of arbitration are that the dispute will remain private, however, an employer might choose court proceedings litigation on the basis that it will be easier in court to bring a claim for defects, as those claims are often multi-party, which are not so easily dealt with in arbitration. Most JCT contracts provide that the parties could, by agreement, seek to resolve any dispute or difference through mediation.

Question 49

How can parties resolve disputes with PPC contracts?

Answer 49

PPC provides a procedure for problem solving and conflict avoidance or resolution. The escalation provisions provide that the partnering team is to attempt to resolve any differences or disputes. A problem solving hierarchy should be established, which provides for a core group to review, within an identified timetable, the issues and attempt to find a solution.

Question 50

What warnings could there be for potential conflicts?

Answer 50

Tone of voice Grumble Emails I want .... another option? Coming after using a different surveyor

Question 51

How can social media cause a conflict?

Answer 51

Posting something confidential.

Question 52

Does VH have a conflict avoidance plan?

Question 53

What would you do if a client shows warning signs that they will complain?

Answer 53

Speak to a manager be aware of the situation and the circumstances Speak to people who have worked with them before.

Question 53

Who can the client escalate the complain to in VH

Answer 53

The managing director - Mark Pellow