Conflict Avoidance, Management and Dispute Resolution Procedures

Question 1

What is a conflict?

Answer 1

A disagreement.

Question 2

When do disputes arise in your role?

Answer 2

● Arises because of a failure to comply with a contractual obligation
● Different interpretations of a contract
● Contract drafting issues
● Scope ambiguity
● Incorrect application of contractual mechanisms

Question 3

What can you do if negotiations break down?

Answer 3

Use dispute resolutions procedures e.g. ADR.

Question 4

What is conflict avoidance?

Answer 4

Methods or behaviors to avoid conflict including:

● Clear and concise contract drafting
● Negotiating contract obligations transparently
● Adopting proactive conflict avoidance risk analysis
● Managing parties’ expectations through clear communication
● Keeping good records to resolve conflicts before they escalate

Question 5

What is conflict management?

Answer 5

Use of processes, tools and skills to find ways to manage disputes.

Question 6

What is dispute resolution?

Answer 6

Resolving disputes between parties. At the most basic level this could be the parties negotiating to a resolution themselves, up to litigation (resolving in court).

Question 7

What is ADR?

Answer 7

Alternative Dispute Resolution - dispute resolution process outside of litigation.

Question 8

What are the different types of alternative dispute resolution?

Answer 8

1) Adjudication
2) Mediation
3) Arbitration
4) Expert determination

Question 9

What are the advantages of ADR?

Answer 9

● Speed (less time than court proceedings)
● Informality
● Greater opportunity for negotiation
● Cost - less professional fees than litigation
● Quality of decision making (can by by a surveyor rather than a judge
● Confidentiality

Question 10

How do you know what dispute resolution method to use?

Answer 10

Checking the contract. E.g. in NEC it is always main option clause W2 in the UK as the Housing Grants, Construction and Regeneration Act 1996 applies.

Question 11

What is the standard dispute resolution procedure under NEC?

Answer 11

NEC it is always main option clause W2 in the UK as the Housing Grants, Construction and Regeneration Act 1996 applies.

1) Adjudication
2) The Tribunal (usually arbitration or litigation)

Question 12

What is adjudication and what is the process?

Answer 12

The most common form of ADR.

● The Housing Grants, Construction and Regeneration Act 1996 says that any party to a construction contract can refer any dispute under that contract to an impartial adjudicator to make a decision on how to resolve the issue.
● 28-day procedure for adjudication, although this can be extended for another 14 days by agreement.
● The adjudicator’s decision is binding, although it can be overturned later by a court or by arbitration.
● The parties to a dispute can agree who their adjudicator will be. If they can’t agree, one of the parties can apply to an Adjudicator Nomination Body (ANB) to appoint one for them. RICS is the UK’s leading ANB.

Question 13

What is mediation and what is the process?

Answer 13

A less formal form of ADR where a mediator help the parties engage in meaningful dialogue, explore the disputed issues in detail and keep them focused on achieving an amicable outcome.

● If they cannot agree on a mediator, or do not know who to approach, they can ask RICS to make the appointment for them.
● A mediator isn’t there to come to a decision themselves or impose a solution on the parties.
● Mediation tends to be more cost-effective and flexible, and less formal, than some of the other forms of ADR.

Question 14

What is arbitration and what is the process?

Answer 14

Both parties agree for a decision to be made by an independent arbitrator (or a panel of arbitrators).

● The process is formal, similar to court proceedings – but, unlike open court, it is private and confidential.
● The arbitrator will usually be an expert in the subject of the dispute.
● The parties put forward their case to the arbitrator, who will assess the evidence and decide which party’s case was most persuasive.
● The arbitrator’s decision (called an award) is final and legally binding, therefore the losing party cannot take the matter to court.
● Arbitration can be a quicker and more cost-effective solution than going to court.

Question 15

What is expert determination and what is the process?

Answer 15

Like arbitration, expert determination is a private process where an independent technical expert is appointed (by the parties themselves or by an appointing body such as RICS) to conduct their own investigation and reach a decision on the dispute.

● Expert determination is often used when the dispute focuses on a technical issue rather than a legal one.
● The decision can be binding or non-binding but is usually binding.

Question 16

What do you know about the RICS Dispute Resolution Service?

Answer 16

Largest provider of ADR services in the land, property and construction industries. Provides:

● Arbitration
● Independent Expert Determination
● Adjudication
● Mediation
● RICS Conflict Avoidance Proccess (CAP)

Question 17

What is RICS Conflict Avoidance Proccess (CAP)?

Answer 17

A government-endorsed procedure that can be written into contracts (or used ad-hoc) 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.

1) A CAP Panel of 1 or 3 professionals will be appointed by RICS to help parties resolve the issue/disagreement they are facing.
2) The CAP Panel are experts in the subject at the heart of the dispute so will quickly get to the crux of the matter.
3) The CAP Panel will work alongside the parties to understand the issue(s) they are grappling with.
4) Using their experience and technical expertise, the CAP Panel will then provide a fully reasoned CAP Report setting out a practical means to resolve the issue(s).

Recommendations are no binding.

Question 18

What is an expert witness?

Answer 18

● when a surveyor provides evidence to a tribunal e.g. court, arbitrator, independent expert
● primary duty of care is to the court not to the client
● surveyors should only accept if they have the knowledge, experience and qualifications and training
● give an objective and unbiased opinion

Question 19

What is the difference between and expert witness and an independent expert?

Answer 19

Expert witness = provides evidence to a tribunal e.g. court, arbitrator, independent expert
Independent Expert = provides a decision in expert determination ADR

Question 20

What is an advocate?

Answer 20

Surveyors acting as advocate represent their client at a judicial hearing/tribunal. Has a duty to the client and tribunal.

Question 21

What RICS guidance do you know relating to dispute resolution?

Answer 21

There are various guidance notes from RICS including:

● Acting as expert witnesses
● Acting as advocaters
● Acting as arbitrators
● Acting as independent experts

Question 22

What are the benefits of clear contract documentation?

Answer 22

Makes disputes less likely as all parties are aware of their obligations.

Question 23

How can good record keeping avoid conflict?

Answer 23

Provide written evidence of the agreements made.

Question 24

What are the three pillars of dispute resolution?

Answer 24

1) Negotiation - communication between parties
2) Mediation - neutral third party facilitates discussion
3) Adjudication - neutral third party makes a legally binding decision (e.g. adjudicator, arbitrator, court)

Question 25

How do mediation and conciliation differ globally?

Answer 25

Mediation primarily focuses on facilitating discussion and communication between parties, allowing them to reach their own agreement. Conciliation, on the other hand, may involve the conciliator offering suggestions or proposals for settlement, taking a more active role in the process.

Question 26

What is the Technology & Construction Court and what is its role?

Answer 26

The Technology and Construction Court (TCC) is a specialist court within the High Court of England and Wales that handles disputes related to building, engineering, and technology. Its primary role is to adjudicate on disputes arising from construction contracts, professional negligence claims, and other technology-related legal issues.

Question 27

If you work with contracts, explain how dispute resolution works in a contract you have worked with?

Answer 27

NEC it is always main option clause W2 in the UK as the Housing Grants, Construction and Regeneration Act 1996 applies. 1) Adjudication 2) The Tribunal (usually arbitration or litigation) - only once adjudication has been done

Question 28

What is a Dispute Review or Recommendation Board (DRB)?

Answer 28

Standing = stays up to date throughout the project Ad-hoc board = only involved if a dispute arises A standing group of typically, three independent and impartial persons selected by the contracting parties. The Dispute Board knows the parties, knows their goals and objectives, and can act efficiently to prevent a dispute from arising or, if one does, to give a decision in some cases. A standing Dispute Board will stay up-to-date on the project’s progress and any potential problems through regular site visits and meetings. They will also respond to issues by offering formal guidance and recommendation. If a dispute occurs, the Dispute Board will review the situation and provide a resolution, which could include non-binding advice (Dispute Review Board), binding decisions (Dispute Adjudication Board), or a mix of both.

Question 29

Explain the various adjudication services provided by RICS.

Answer 29

● Construction adjudication - construction industry disputes (can be complex) ● Low value adjudication (less that £10k) ● Summary adjudication (straightforward and less than £20k) ● Homeowner adjudication (between homeowners and contractors

Question 30

What is the role of RICS in dispute resolution?

Answer 30

1) Dispute Resolution Service 2) RICS Adjudicator Nomination Body (ANB) 3) RICS Conflict Avoidance Proccess (CAP)

Question 31

What is an Adjudicator Nominating Body (ANB)?

Answer 31

An organisation that appoints adjudicators to resolve disputes in the construction and engineering industries. RICS is a globally recognised ANB.

Question 32

What tribunals are you aware of?

Answer 32

Technology and Construction Court (TCC).

Question 33

Which dispute resolution procedures lead to a binding decision?

Answer 33

1) Litigation 2) Arbitration 3) Adjudication 4) Expert determination (usually)

Question 34

Explain the RICS conflict avoidance pledge to me.

Answer 34

● A pledge companies can make to work collaboratively on projects and try to avoid conflict. ● The pledge was initiated by several UK professional bodies in construction and engineering including RICS, ICE and RIBA. ● Demonstrates you are a good business to work with and maintain good business relationships.

Question 35

Explain the Thomas Kilman model to me?

Answer 35

A model that categorizes five distinct conflict handling styles based on two dimensions: assertiveness and cooperativeness. 1) Competing 2) Collaborating 3) Compromising 4) Avoiding 5) Accommodating

Question 36

What did you learn from reading the RICS Guidance Note on Conflict Avoidance and Dispute Resolution in Construction (2012)?

Answer 36

The 3 pillars of dispute resolution - Negotiation, mediation and adjudication). ADR methods.

Question 37

What is the early warning proccess in NEC?

Answer 37

1) PM or Contractor notify the other when they become aware of something that could increase the total of the Prices, delay completion, delay meeting a key date or impair the performance of the works in use. 2) PM or Contract can instruct the other to attend and EW / risk reduction meeting 3) All parties discuss how the matter can be resolved 4) PM revises the risk / EW register and issues to the Contractor.