Conflict Avoidance, Management and Dispute Resolution Procedures

Question 2

What are the three pillars of dispute resolution?

Answer 2

Negotiation, Mediation, Adjudication.

Question 3

What are the alternative types of dispute resolution?

Answer 3

Negotiation, Mediation, Adjudication.

Question 4

What are the formal methods of dispute resolution?

Answer 4

Adjudication, Arbitration, Litigation.

Question 5

What is the default method of dispute resolution in the JCT?

Answer 5

Litigation.

Question 6

What is mediation?

Answer 6

Where the two parties agree to have an impartial third-party help facilitate them reaching an agreement.

Question 7

What is adjudication?

Answer 7

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

Question 8

Can you describe the process of adjudication?

Answer 8

Notice of dispute is issued.
7 days to appoint an adjudicator.
Decision made by the adjudicator 28 days from the notice being issued.

Question 9

What are some advantages of adjudication?

Answer 9

Time certainty. Can be done in private.

Question 10

What legislation gives the right to adjudicate?

Answer 10

The Construction Act – Housing Grants, Regeneration and Construction Act (1996).

Question 11

What is arbitration?

Answer 11

An agreement by both parties to enter arbitration. Procedures are similar to litigation but are held privately. For arbitration to apply, the contract must contain an agreement to arbitrate.

Question 12

What is litigation?

Answer 12

Public process that follows civil procedure rules. Information is submitted and reviewed by the court over a period of time, and then the judge comes to a binding decision. Can take anywhere from 6 to 18 months.

Question 13

What court is litigation held in?

Answer 13

TCC – Technology and Construction Court.

Question 14

Who pays the legal fees under litigation?

Answer 14

Commonly the losing party will pay for their own legal fees and that of the winning party.

Question 15

What did you learn from reading the RICS Guidance Note on Conflict Avoidance?

Answer 15

Three pillars of dispute resolution which are; negotiation, mediation and adjudication.

Question 16

What is a conflict?

Answer 16

A disagreement (beyond negotiation) between two parties.

Question 17

How can conflict in Construction be avoided?

Answer 17

Good management - raising early any issues of concern.

Clear contract documentation - No ambiguities.

Good payment practice - Paying on time.

Record keeping - Quickly resolves disputes. Document in writing after agreeing verbally.

Good project management - Proactively managing all aspects of time, cost, risk.

Question 18

How do you initially deal with a conflict when it arised?

Answer 18

Raise the issue with all parties.
Try to resolve through communication and negotiation.
Face to face meeting with the disagreeing parties.

Question 19

What indicates a successful final account negotiation?

Answer 19

All parties are happy.
Costs agreed within budget.
Resolved in a timely manner.

Question 20

What is the cause of most disputes?

Answer 20

Commercial aspects - agreeing variations.
Unclear contract info - often relating to drawings / specs.
Teams under pressure and making decisions too quickly.
Insufficient detail in the contract.
Unclear scope of service/

Question 21

You try to resolve a dispute using negotiation but it doesn’t work. What do you try next?

Answer 21

ADR - Alternative Dispute Resolution

Question 22

When do disputes arise with a QS?

Answer 22

Agreeing variations.
Agreeing final accounts.
When contract documentation is ambiguous.

Question 23

What are the three pillars of dispute resolution within a JCT contract?

Answer 23

Negotiation, mediation/conciliation and adjudication.

Question 24

What is negotiation?

Answer 24

Power to settle the dispute rests with the parties themselves.

Question 25

What are the timelines of dealing with a negotiation?

Answer 25

Negotiation ends when both parties come to an agreement.

Question 26

What is mediation?

Answer 26

A third-party intervention which does not lead to a binding decision being imposed on the parties.

Question 27

What are the timelines when dealing with mediation?

Question 28

What is mediation?

Answer 28

Parties agree on a impartial third party to facilitate discussion between them with the goal of reaching a settlement. Power to settle remains with the parties.

Question 29

Describe the process of mediation.

Answer 29

Parties meet with the mediator. Mediator facilitates the discussion, ensuring each side is heard. Parties reach a mutual agreement. Mediator does not award a winning party. Process is not legalling binding.

Question 30

Is mediation legally binding?

Answer 30

No

Question 31

What is conciliation?

Answer 31

Conciliator seeks to facilitate a settlement between the parties. They do not decide any issues but allows each party to state its position and then helps them find a compromise.

Question 32

What is the process of conciliation?

Answer 32

Independent party appointed to aid agreement. Conciliator prepares recommendation setting out their solution. If no disagreements from either party, this recommendation becomes the binding decision.

Question 33

What is the difference between mediation and conciliation?

Answer 33

Mediator = facilitator helping parties reach agreement. Conciliator = Plays direct role in finding solution, making suggestions, proposals and providing advice.

Question 34

What is adjudication?

Answer 34

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

Question 35

What are the timelines when dealing with adjudication?

Answer 35

Notice of dispute is issued. 7 days to appoint an adjudicator. Decision made by the adjudicator 28 days from the Issue of Referral notice being issued.

Question 36

Describe the process of adjudication.

Answer 36

Notice of dispute is issued. 7 days to appoint an adjudicator. Decision made by the adjudicator 28 days from the Issue of Referral notice being issued.

Question 37

Is adjudication legally binding?

Answer 37

Yes, adjudication is legalling binding.

Question 38

Your Client asks to remove the adjudication clause from the contract, how would you advise them?

Answer 38

That this is a statutory right for all construction projects under the Construction Act 2009, and it cannot be amended out.

Question 39

Can the adjudication period of 28 days be extended?

Answer 39

Yes, up to 42 days with mutual agreement of both parties.

Question 40

Who pays the adjudication fees?

Answer 40

Both parties are jointly liable for the adjudicator's fees. The adjudicator decides who is to pay the fees and reasonable expenses.

Question 41

What is arbitration?

Answer 41

An agreement by both parties to enter arbitration. Procedures are similar to litigation but are held privately. For arbitration to apply, the contract must contain an agreement to arbitrate.

Question 42

What legislation governs arbitration?

Answer 42

Arbitration Act 1996

Question 43

Describe the process of arbitration.

Answer 43

Parties agree to submit their dispute to arbitration. Information is submitted and reviewed by the arbitrator. Arbitrator issues decision which is legally binding.

Question 44

Name 3 advantages of arbitration.

Answer 44

Process is private. Reputations are not harmed. Faster than litigation. Parties get to agree on an arbitrator with experience in the matter. Arbitrator's decision can be enforced as a judgement of court.

Question 45

Name 3 disadvantages of arbitration.

Answer 45

Parties bear the cost of the arbitrator and the venue. Limited rights to appeal. Could be that the arbitrator's fee is more than the issue at stake.

Question 46

What are the different methods of arbitration?

Answer 46

Domestic International Ad-hoc Fast track Institutional

Question 47

Under what circumstances can arbitration be appealed?

Answer 47

Errors of law or fact. Appeals must be initiated within 28 days of the decision.

Question 48

Who is an ‘Expert’?

Answer 48

A person whose experience and knowledge in a particular field is beyond that of a layman.

Question 49

Explain the role of an expert witness.

Answer 49

An expert witness provides their knowledge to court to reach a just and reasoned decision.

Question 50

What are the civil procedure rules?

Answer 50

They govern the procedure of civil court cases in Eng & Wales, ensuring they are delat with fairly, efficiently and at a reasonable cost.

Question 51

What is litigation?

Answer 51

Public process that follows civil procedure rules.

Question 52

Describe the process of litigation.

Answer 52

Party brings a claim to the civil court. Information is submitted and reviewed by the court. Judge makes a binding decision. Takes anywhere from 6 to 18 months to close.

Question 53

Name 3 advantages of litigation.

Answer 53

Judge can enforce time frames and has the power to impose sanctions for non-compliance. Judges can make orders to provide interim relief. Define rights of appeal in cases where errors of fact or law are made.

Question 54

Name 3 disadvantages of litigation.

Answer 54

Greater costs if dispute is not well managed. Costs if party seeks to delay the proceedings. Longer period to obtain judgement. Conducted in public, harming reputation. Judgement is subject to appeal.

Question 55

What is the TCC?

Answer 55

Technology & Construction Court Handles disputes re. building, engineering, surveying. Typically for cases worth more than £250k.

Question 56

What types of dispute have you come across in your experience and how have these been resolved?

Answer 56

Mainly negotiation and mediation.