Conflict Avoidence And Dispute Resolutiin Flashcards
(41 cards)
What are the different types of ADR?
a. Negotiation
b. Mediation
c. Conciliation
d. Adjudication
e. Arbitration
f. Litigation
What is negotiation?
a. The process whereby the disputing parties resolve the issue between themselves
b. Power to settle the dispute lies with the parties involved
c. Non binding
What is mediation?
a. Parties agree to an independent, passive third party to facilitate discussions between the disputing
parties.
b. Power to settles still lies with the parties involved however the mediator acts as a go between.
c. Used when direct communication isn’t working
What is conciliation?
a. Same as mediation however the mediator plays an active role in suggesting a solution
What is adjudication?
a. Introduced under the Housing Grants and Construction Regeneration Act 1996 (implemented 1998).
b. Amended and updated by the Local Democracy Economic Development and Construction Act 2008.
c. If the Act applies to the contract, either party may enter into adjudication at any point, within 7 days of
serving a Notice of Dispute.
d. Only pre requisite is that there must be a dispute.
e. Adjudicator has 28 days from issue of the referral to issue a decision.
f. Decision is binding
g. Process:
i. Submit a notice of dispute
ii. 48 hours later the adjudicator confirms receipt
iii. Within 7 days, it appoints an adjudicator
iv. 28 days from referral a decision must be made
v. Can be extended by 14 days however this must be agreed by both parties
h. Decision generally lasts up to PC
i. Seen as a “pay now argue later” form of ADR
j. The same dispute cannot be adjudicated on twice
What is arbitration?
a. For arbitration to apply, it must be written within the contract.
b. An elected third party makes a binding decision
c. Binding decision
d. Arbitration Act 1996.
What is litigation?
a. Going to court
b. Public and binding
c. Public element can damage a company’s reputation
How does the JCT SBC set out how disputes should be resolved?
a. Section 9 – settlement of disputes
b. Specify mediation, adjudication and arbitration
c. Article 7 – adjudication
d. Article 8 – arbitration
e. Article 9 – sets that the English courts have full jurisdiction
Are you aware of any legislation around dispute resolution?
a. Housing grants and construction regeneration act 1996
b. Local democracy, economic development and construction act 2008
c. Arbitration Act 1996
What is the difference between adjudication and arbitration?
a. Parties have to agree to arbitration and has to be specifically written into the contract
b. Adjudication is generally a 28 day process whereas arbitration can be a minimum of 4 months
c. Levels of information required to be submitted – arbitration is extensive
What is the HGCRA 1996?
b. Also known as the construction act
c. Provisions of the act include:
i. The right to be paid in interim, stage or periodic payments
ii. The right to be informed of the amount due or any payments withheld
iii. The right to suspend performance for non payment
iv. The right to adjudication
v. Disallowing pay when paid clauses
d. Act applies for all construction contracts
e. If the contract doesn’t comply, the scheme for construction contracts does
What is the LDEDCA 2009?
a. Amended the HGCRA
b. Known as the new construction act
c. Section 108 of the act enabled the adjudicator to correct a clerical or typographical error
d. Due date cannot be determined by payment notice time
e. Pay when certified clauses prohibited
f. Introduced payless notices:
i. Must specify the sum that the payer considers due and the basis for calculating the sum
What are the timescales for adjudication?
a. Adjudicator confirms receipt of notice within 48 hours
b. 7 days to appoint adjudicator
c. 28 days to reach a decision
d. Can be extended by 14 days if necessary although must be agreed by both parties
What is the scheme for construction contracts?
a. Either supplements or provisions within the contract where it has deficiencies
Give me an example of a dispute that you have been involved in?
a. Disagreement on total valuation on Greenwich
b. Contractor stated they did not agree with my assessment – main issue was around the amount of VE
that was being taken
c. I provided a full summary, showing the completion of the packages against the amount of VE that had
been applied
d. This highlighted that they had not updated their application in line with previous assessments which
lead to a superficially large difference
e. It also highlighted that the amount of VE being taken was in line with the packages progress valued,
which was an accurate way of drawing it
f. The contractor accepted my assessment and this avoided the dispute escalating any further
What are the three pillars of alternative dispute resolution?
a. Negotiation
i. Neutral fact finding
ii. Expert appraisal
iii. Early neutral evaluation
b. Mediation/conciliation
c. Adjudication
Talk me through negotiation:
a. Two main types:
i. Principled:
1. Invent options for mutual gain
ii. Competitive:
1. Will make an initial offer that is very low
2. Tactic is simple, raise offers gradually while weaving in other issues
What are the principles of negotiation?
a. Understand the facts
b. Develop a common ground
c. Have a fair result in mind with an upper, medium and lower range
d. Take the views of the other party into consideration
e. Make a decision and be firm with it
Which court deals with construction cases?
a. Technology and Construction Court
b. Specialist branch of the high court
c. Do not usually deal with claims under £250,000
d. Cases include:
i. Claims about professional services provided
ii. Local authorities duties to land and building
iii. Environmental claims
iv. Claims resulting from fire
v. Challenges to decision of arbitrators in construction and engineering disputes
vi. Based in the Rolls Building London
Conflict Avoidance Processes
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
What if a building contract does not contain provisions for adjudication?
- Parties have the statutory right to adjudication assuming the contract qualifies under the construction act.
- The Scheme for construction contracts will apply in it’s entirely
Why do you think the JCT2005 suite of contracts has dropped arbitration in favour of litigation as a form of dispute resolution?
- Arbitration is intended to be better but rarely works out cheaper.
- Arbitration was getting more and more like litigation.
- Litigation has improved through Civil Procedure Rules.
- As mediation has been encouraged, less disputes reach courts and as such courts are more free which in turn reduced timescales.
- Adjudication is effectively a simplified arbitration and has further taken away some advantages.
What could indicate the success of a negotiation on a final account?
Both parties come away happy, costs agreed within cost report budgets.
What enforces the requirement for a building contract to contain provisions for adjudication?
The Housing grants, Construction and Regeneration Act 1996
