Conflict Avoidance, Management, and Dispute Resolution Procedure Flashcards
(31 cards)
What are the common causes of disputes in the construction industry?
a) Poor management
b) Poor communication
c) Poor payment practice - late payments
d) Change in scopes
e) Unclear contract documentation - breaches in contract
f) Poor workmanship
g) Negligence
How to avoid conflicts?
a) Good management - proactive approach and planning, managing works well, good record keeping, good communication with periodic meetings, getting on top of issues early before they spiral
b) Clear contract documentation
c) Good payment practice - making payments on time
d) Good cooperation and alliance between project parties to foster teamwork and open communication
Three pillars of dispute resolution?
a) Negotiation
b) Mediation or Conciliation
c) Adjudication
What are alternative dispute resolutions and some examples?
a) These are techniques of negotiation that help parties reach an agreement without going to court
b) Arbitration, Adjudication, Mediation, Conciliation, and Negotiation
Why are alternative dispute resolutions good?
a) You can save time and cost
b) Not public, private and confidential
c) Business relationships can be maintained
Why are alterative dispute resolutions bad?
a) They are not always legally enforceable
b) Not all dispute are suitable - too complex
Dispute resolution techniques?
a) Arbitration
b) Adjudication
c) Mediation
d) Conciliation
e) Negotiation
f) Litigation
What is negotiation?
a) Discussion aimed at reaching an agreement
What is arbitration?
a) Private, contractual forms of dispute resolution that is legally binding
b) Parties will willingly appoint an arbitrator, who’s decision is award in the form of the arbitration award.
c) It is solved on material fact and evidence, favoured on international contract rather than local courts
d) Parties bare cost, however working relationship is maintained
What is litigation?
a) When other methods of dispute resolutions have failed, litigation is used. Dispute are taken to court.
b) Civil Procedure Rules 1998 are followed, arguments are presented, an objective decision is made by the judge.
c) It is based on material fact and evidence
d) It is expensive, time consuming, and very public. Relationships are not maintained if this option is used.
What is adjudication?
a) Contractual procedure used for swift dispute resolution
b) Either party may request presence of adjudicator within 7 days of service notice of dispute
c) Adjudicator has 28 days to make decision
d) Decision is temporary binding, court proceedings can then enforce the decision
e) Less expensive and time consuming than litigation or arbitration
What is mediation
a) Third party mediator is appointed by parties to assist in proceedings to solve dispute
b) No legal authority, and process is not binding unless a settlement is made
c) Quick verdicts, when relationship is amicable between parties
d) If parties don’t agree, negotiations can continue, the disagreement can be escalated to litigation or arbitration or no agreement is reached.
How does litigation and arbitration differ?
a) Both are legally binding forms of dispute resolution techniques
b) Arbitration is a form of ADR, as it does not involve court while litigation does
c) Litigation is overseen by judge, arbitration is overseen by appointed party
d) Litigation is governed by law in country it takes place in, arbitration law can be selected.
e) Litigation is time consuming and high in cost, while arbitration is less time consuming and generally less expensive.
How does adjudication and arbitration differ?
a) Adjudication is a rapid process, and a unique process to the construction industry that is enforced by the courts.
b) Arbitration takes longer due to a statement of case and evidence.
c) Adjudication is less expensive as no legal proceedings
d) Adjudication requires less formal evidence, good for less complex cases
e) Adjudication is temporary binding, arbitration is final and legally binding
What would influence the selection of a type of resolution method?
a) The relationship between the parties, will the method selected affect the relationship? Choosing more amicable methods such as negotiation, mediation, adjudication, arbitration, rather than litigation.
b) The timeframe, if you want a quick decision than adjudication would be a good option rather than litigation or arbitration.
c) The cost of the dispute
d) Is it appropriate for the dispute, the complexity of the dispute, the scale, is it worth going to court?
e) Whether you want the case to be public, or private
What are the formal methods of dispute resolution?
a) Litigation
b) Arbitration
c) Adjudication
What types of dispute resolution are legal/judicial context?
a) Litigation
b) Arbitration
c) Mediation - if settlement made
d) Adjudication - if enforced by court
What is negotiation?
Discussion aimed at reaching an agreement
What is the negotiation process?
Prepare, discuss, test, trade, close.
Why do negotiations break down?
a) Inflexibility
b) Close mindedness
c) Aggressive behaviour
d) Poor communication
e) Win/lose mentality
Negotiations avoided?
a) Clear and transparent communication
b) Understanding both parties wants and looking for a mutual benefit for both parties.
What is a risk management strategy?
a) Approach to deal with risk
b) Plan which details how you going to deal with risk - both pre-emptively and as incidents occur
c) They are different types of risk management strategies, examples include; acceptance, avoidance, retention, transfers.
Types of risk management strategy?
a) Acceptance: more cost effective to accept the risk, rather than mitigate the risk.
b) Avoidance: avoid the risk all together so it does not occur initially.
c) Retention: Based on frequency and severity of risk, retaining more cost effective.
d) Transfer: Transferring the risk via contract to external party, risk still present just the responsibility shifts - insurance.
What is an early warning system?
Allows for reviews of potential issues to indicate if any problems are present, which allows the issues to be dealt with before they spiral/snowball into great issues.
