Conflict Avoidance, Management & Dispute Resolution Level 1 hooks

RICS guidance note on conflict avoidance and dispute resolution procedures in construction

What is the main points within the RICS guidance note on conflict avoidance and dispute resolution procedures in construction document?

Preventing Disputes

How does risk management, issue management & having a clear brief and clear communication prevent disputes?

Risk Management – Early identification of a risk means that sufficient mitigations can be put in place in good time to avoid a dispute later down the line

Issue Management – The idea that issues are identified and actively resolved as they arise via a structured process will help alleviate the risk of the issue turning into a dispute due to an insufficient process being in place.

Clear Brief – By having a clear brief gives the project team transparency and clear direction on how the project should be designed, constructed, budget allocations etc. This will alleviate the risk of confusion later down the line which could lead to a large amount of variations in the scheme which could lead to disputes on who is liable for these changes

Clear communication – Having clear communication removes, ambiguity, confusion and demonstrates accountability. This will in turn will alleviate the risk of disputes occurring as everyone involved on the project is clear of the expectations on the deliverables of the project and also the expectations of themselves.

Negotiation

What is negotiation? What are the main points to consider when negotiating?

Discussions to reach a compromise or agreement. Parties through an informal or facilitated negotiation process agree to settle the dispute either at high level or in detail. The 5 main points to consider when negotiating

  1. Why negotiate?
  1. What is negotiable?
  1. What I aim to achieve?
  1. What does the other party want?
  1. Rationale for negotiation?

Negotiation Outcomes

Have examples of a scenario for each negotiation outcome?

Win-Win: The negotiators find a mutually beneficial common ground. Both sides are in a better position than before the negotiation.

Win-Lose: One side of the negotiation profits at the others expense. One side of the negotiation comes out ahead.

Lose-Win: One side of the negotiation profits at the others expense. One side of the negotiation comes out ahead.

Lose-Lose: Neither side achieves a desirable result. Both parties are worse off. Failed negotiations are often Lose-Lose

Dispute Resolution

What are the definitions for each, the approach, the advantages/disadvantages & the outcome?

1) Negotiation

Definition - The process whereby the parties work out between them how to resolve issues that have arisen. Power to settle the dispute rests with the parties

Main Characteristics of Negotiation

1) Negotiation ends when both parties come to an agreement

2) Suitable for simple matter, easily resolvable, compromises made

3) Requires co-operation of both parties

Advantages

1) Non-adversarial so preserves the relationships

2) Private

3) Quick

4) Flexible

5) Can be binding

6) Inexpensive

Disadvantages

1) Compromise may not be a true reflection of the issue

2) Generally non-binding

3) Costs mat not be recoverable

4) Some are wary of disclosing too much information in case a future case is compromised

2) Mediation

Definition - The parties agree on an independent, third-party neutral system to facilitate discussions between them, with the goal of reaching a settlement. The power to settle remains with the parties but the process is led by the mediator

Main Characteristics of Mediation

1) Mediation encourages coming together and agreeing

2) Its done by mutual agreement

3) The process can be initiated at any time between the parties

4) The mediator does not award a winning party

5) The process is non-binding

Advantages

1) Similar to negotiation

2) Non-adversarial

3) Flexible

4) Seeks to find common ground which could lead to a less harsh litigation proceedings

5) Short procedure

Disadvantages

1) Mediator does not normally state their opinion or state specialist advice

2) Not suitable for complex situation

3) Generally non-binding

4) Costs may not be recoverable if no agreement is found

3) Adjudication

Definition - Adjudication was developed to allow for construction contract disputes to be resolved more quickly and cost-effectively than resolution through arbitration or litigation. Its objective is to provide a fast-working solution to an issue without the need for a more formal dispute resolution procedure so that parties can quickly resume or continue work under the contract

Adjudication process

1) Following the crystallisation of a dispute, either party can serve a notice on the other party of its intention to refer the dispute to adjudication

2) Within 7 days of the issue of the notice, the referring party must serve upon the other party its referral/statement of case. If the referral is not served within that time, the adjudication is likely to be void

3) The referral must contain a detailed explanation of the referring part's claim in respect of the dispute identified within the notice, along with any supporting documentation

4) Within that 7-day period, the referring party must secure the appointment of an adjudicator. This will either be a person named in the contract or, if no-one is named by using the nominating body identified in the contract.

5) Following the appointment, the adjudicator will set out a timetable, this will usually permit the other party to issue a response to the Referral

6) The adjudicator must make his decision within 28 days of the Referral. (That time can be extended to 42 days by mutual agreement of both parties)

Advantages

1) Private

2) Statutory rights apply with adjudication

3) Adjudicator must act impartially

4) Speed - Decision within 28 days although can be extended by 14 days

5) Decision is binding until finally determined in arbitration or litigation

6) Simplified arbitration process

Disadvantages

1) Each party bears their own costs, even if successful

2) Relatively expensive

3) Adversarial (Confrontational as evidence has to be provided)

4) Arbitration

Definition - Arbitration is essentially a lawsuit but without court involvement. The parties agree either in a contract before a dispute arises or through subsequent agreement to avoid a lawsuit to submit their dispute to arbitration rather than pursue a lawsuit in court. The parties agreement gives the arbitrator the power to issue a decision as to the parties' right and obligations an such decision will be legally binding on all parties

Advantages

1) The process is private as there is no public record of any proceedings, although not necessarily confidential

2) Speed compared to litigation

3) The parties can agree on an arbitrator with relevant expertise in the matter

4) The arbitrators award can be enforced as a judgement of the court

Disadvantages

1) The parties must bear the cost of both arbitrator and the venue

2) Limited appeal rights

3) If the matter is complicated but the amount of money involved is modest, then arbitrator's fees may make the arbitration uneconomical

4) It does not offer the litigation advantage of precedent

5) Litigation

Definition - Litigation involves one of the parties commencing a claim in the civil courts. The courts have inherent jurisdiction to hear a dispute in respect of just about anything. The nature, complexity and value of the dispute will determine which court will hear a particular dispute

Advantages

1) Judges can compel the parties to comply with time frames and have powers of sanctions for non-compliance

2) Judges have the power to make orders to provide interim relief protect a party's position pending the final judgement

3) There are defined rights of appeal in cases where errors of fact or law are made

4) Provides maximum degree of certainty

5) A Legal precedent can be sought

6) The public nature of litigation may encourage debate and could secure a change in legislation

Disadvantages

1) Potentially greater costs if the dispute is not well managed or if the other party seeks to delay the proceedings

2) Potentially longer period to obtain judgement

3) Proceedings are generally conducted in public

4) Judgement will be subject to appeal