M - Conflict avoidance, management and dispute resolution procedures

Question 1

What are the main conflict avoidance processes a Quantity Surveyor should be aware of?

Answer 1

1) Good Management
2) Clear Contract Documentation
3) Partnering and Alliancing
4) Good Project Management
5) Good Client Management
6) Good Contractor Management
7) Good Design Team Management
8) Good Payment Practice
9) Record Keeping
10) Regular Reporting and Pro-Activity

Question 2

What does good management involve in conflict avoidance?

Answer 2

• Pro-active management of responsibilities and duties
• Planning and management of future workload
• Raising early concerns

Question 3

What does clear contract documentation involve in conflict avoidance?

Answer 3

• Many disputes arise from ambiguous contract documentation

- Good documentation means capturing specific details, addressing circumstances and risks of the project

Question 4

What does partnering and alliancing involve in conflict avoidance?

Answer 4

• Building cooperation between project participants
• Helps foster team working, problem solving
• Emphasis on project delivery, can help avoid disputes

Question 5

What does good project management involve in conflict avoidance?

Answer 5

• Proactively managing all aspects of time, cost and risk

- Involves addressing most difficult issues

Question 6

What does good client management involve in conflict avoidance?

Answer 6

• Understanding Client objectives and approach to risk
• Good lines of communication will help raise early concerns and enable discussions to decide how to appropriately deal with issues

Question 7

What does good contractor management involve in conflict avoidance?

Answer 7

• Clear understanding of project, contract and programme
• Regular objective assessment of progress and proactively dealing with issues
• Problems and delays need to be handled in a positive and objective manner
• Primary responsibility with the PM, although the QS can assist

Question 8

What does good design team management involve in conflict avoidance?

Answer 8

• Provision of information within the design team and to the contractor is crucial
• Good forward planning and management of conflict is crucial to avoid disputes

Question 9

What does good payment practice involve in conflict avoidance?

Answer 9

• Comply with the terms agreed to within the Contract, ensure payments are made promptly
• This can help avoid animosity, conflict and dispute

Question 10

What does record keeping involve in conflict avoidance?

Answer 10

• Many disputes can be resolved by retrospectively considering records that have been kept
• Includes records of labour, plant and materials. Records of daily site activities
• Changes - Record how the change occurred

Question 11

What does regular reporting and pro-activity involve in conflict avoidance?

Answer 11

• Regular monitoring of cost, progress and quality is important for the success of any project
• Important to raise and manage issues that are causing delay, increasing cost, quality problems as soon as practically possible.
• Actions should be recorded so they can be tracked.

Question 12

Why do disputes occur?

Answer 12

1) Poor performance of parties
2) Uncontrolled change
3) Complex contractual relationships / inadequate tender and contract documentation
4) Inability or reluctance to pay
5) Inappropriate procurement

Question 13

How do you avoid a conflict on a project?

Answer 13

1) Robust tender and contract documentation
2) Controlled change
3) Informed procurement strategies
4) Sensible risk allocation
5) Appropriate financing
6) Pro-active project management
7) If there is a dispute, use a personal approach first and try to negotiate an agreement before going legal
8) As a last resort you should go legal

Question 14

What is ADR?

Answer 14

Alternative Dispute Resolution

Question 15

What are the three pillars of dispute resolution?

Answer 15

1) Negotiation - Between the parties (non-binding)
2) Mediation or Conciliation - Third party intervention (non-binding)
3) Adjudicative Process - Third party determination (binding)

Question 16

What is Negotiation?

Answer 16

• Parties resolve any issues between them

- Power to settle rests with the parties

Question 17

What is Mediation / Conciliation?

Answer 17

• Parties agree on an independent third party to facilitate discussions between them
• Power to settle rests with the parties, although Conciliator will propose a settlement
• Process is led by the mediator / conciliator

NON-BINDING

Question 18

What is Expert Determination?

Answer 18

• Parties agree by Contract that a third party will make a binding decision
• Terms are governed by the Contract
• In most cases it is not possible to appeal

BINDING

Question 19

What is Adjudication?

Answer 19

• A party intending to take a dispute to adjudication must serve written notice within 90 days of the dispute arising
• The respondent has 10 business days to provide their response and supporting documentation
• The adjudicator has 10 business days to issue a decision
• The decision is binding, unless challenged - it can be referred to arbitration or litigation
• Seen as a simplified version of arbitration
• Process set out in the Construction Contracts Act 2004 (WA)

BINDING

Question 20

What is Arbitration?

Answer 20

• A private, judicial determination of a dispute by an independent third party
• Contract between the parties must contain written agreement to arbitrate in order for it to apply
• When applicable, parties may choose to refer to an arbitration procedure such as the ‘Rules of The Institute of Arbitrators, Australia’
• Many jurisdictions around the world contain legislation dealing with arbitration. Often it is based on the ‘United Nations Commission on International Trade Law (UNCITRAL) Model Arbitration Law

BINDING - Very difficult to appeal

Question 21

What is Litigation?

Answer 21

• The process of taking legal action, in which a dispute is taken to an appropriate court.
• The nature, complexity and value of the dispute will determine which court will hear a particular dispute
• Courts have the widest jurisdiction and in addition to determining disputes, they can issue Charging Orders, summon witnesses and involve third parties as necessary

BINDING

Question 22

What is the difference between Mediation and Conciliation?

Answer 22

MEDIATION

• Voluntary procedure, involves the appointment of a third party mediator to help facilitate negotiations
• The aim of mediation is to help the parties reach an amicable agreement between themselves

CONCILIATION

• Also voluntary and involves a third party conciliator to facilitate negotiations.
• However, the Conciliator will create a settlement proposal

Question 23

What is the dispute resolution method named in the AS4000?

Answer 23

Arbitration

However, Adjudication is provided under the Construction Contracts Act

Question 24

What is the Arbitration process?

Answer 24

• The appointed Arbitrator body must be notified, they will appoint an Arbitrator
• The main hearing will be held, each side will present their version of the conflict along with their evidence
• The Arbitrator will then base their decision on what they believe to be fair and just. They are not required to follow the law of reasoning of earlier case convictions

Very difficult to appeal an Arbitration decision. It can only be appealed if it can be proven that the Arbitrator was:

• Corrupt
• Bias
• Or that the Arbitrator exceeded their power

Question 25

What is the difference between Adjudication and Arbitration?

Answer 25

- Parties of a construction contract are entitled to Adjudication under the Construction Contracts Act, even if it is not stated in the Contract. - Adjudication is meant to be quicker and cheaper than Arbitration - Adjudication decisions can be appealed and taken to Arbitration or Litigation - Arbitration is very difficult to appeal - Arbitration is an alternative to Litigation - Adjudication is confidential, unless appealed to Arbitration / Litigation which is public - Arbitration is only confidential if the parties agree for it to be.

Question 26

What is a conflict?

Answer 26

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

Question 27

What are the different techniques of conflict avoidance?

Answer 27

CCSFA 1) CONFRONTING - Collaborative, confront the issue rather than each other 2) COMPROMISING - Give and take 3) SMOOTHING - More accommodating, involves sacrifice 4) FORCING - Force your view to complete disregard of the other view 5) AVOIDING - Postponing

Question 28

What techniques do you typically adopt for conflict avoidance?

Answer 28

- I would generally confront the issue as i believe it is the quickest and least adversarial way to avoid conflict, by dealing with the facts. - I would force the issue when my position is clear cut in order to protect the Client.

Question 29

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

Answer 29

Variation Assessments - Email our assessment detailing basis and identifying variances in an attempt to reach agreement / provide the contractor with an opportunity to respond. - If no agreement can be made over email, arrange for a meeting. Try to promote a non-adversarial atmosphere, allowing conflict of facts, not feelings - Apply the RICS Professional and Ethical Standards, integrity and respect.

Question 30

What would you do if you cannot resolve the issue during a meeting?

Answer 30

- Suggest that the issue be taken 'off-line' - this would be avoiding / postponing the conflict - This would allow other conflicts to be agreed and more complex ones given more time to agree - The additional time enables all the information to be provided and digested by both parties - Suggest a follow up meeting - Accept that it is not always possible for everyone to be happy with a decision