M006 Conflict Avoidance & Dispute Resolution

Conflict avoidance processes
1. The main conflict avoidance processes that a surveyor should know about include:
  1. Good management:
    1. Planning and managing future work,+ raising early any issues of concern, provide confidence in the surveyor’s ability, enable probs 2 b managed.
  2. Clear contract documentation:
    1. Good documentation means capturing the specific details of the project and addressing the particular circumstances and risks of that project
  3. Good client management:
    1. A good understanding of the client’sobjectives and the clien’s approach to risk is also extremely valuable, as will be maintaining good lines of com
  4. Partnering and alliancing:
    1. Building co-operation between theproject participants in order to fosterteam working, problem solving and an emphasis on project delivery.
  5. Good constructor management:
    1. having an objective understanding of the project, the contract and the programme of works
  6. Good project management:
    1. means pro-actively managing all aspects of time, money and risk assoc with proj
  7. Good design team management:
    1. Good forward planning and the management of conflict that could arise among the design team
  8. Good payment practice:
    1. the valuation should be carried out and payments made promptly = avoid animosity
  9. Regular reporting and pro-activity:
    1. e.g. mtg mins, progress reports. manage issues causing delay, inc in cost or quality problems as soon as is practicable
Dispute Resolution Techniques
1. processes
  1. Negotiation
    1. parties work out between them how to resolve any issues that have arisen.
    2. Power to settle the dispute rests with the parties
  2. Mediation + Concilliation
    1. parties agree on an independent, third-party neutral system to facilitate discussions between them, with the goal of reaching a settlement
    2. power to settle remains with the parties, but the process is led by the mediator
  3. Expert Determination
    1. parties agreed by a contract that a third party will make a binding decision on them
    2. most cases the decision of an expert will be final, and it will not be possible to appeal that decision
    3. the decision of an expert finally determines the dispute without further recourse
  4. Adjudication
    1. Adjudication under section 108 of the Housing Grants, Construction and Regeneration Act 1996 (HGRCA) was introduced in May 1998
    2. The Local Democracy, Economic Development and Construction Act 2009 and the updated Scheme will revise some aspects of the adjudication process
    3. Act applies = either party may appoint adjudicator within 7 days of serving a Notice of Dispute
      1. adjudicator has 28 days from issue of the Referral within which to issue a decision.
        decision will bind the parties and in most cases be readily enforceable in the Technology and Construction Court (TCC
  5. Arbitration
    1. Contract between the parties must contain a written agreement to arbitrate
    2. Applies? = can use arbitration procedure, such as the Construction Industry Model Arbitration Rules or ..... covered by Arbitration Act 1996
  6. litigation
Differences between Arbitriation and Adjudication
1. Arbitration
  1. consensual in accordance with statute
  2. NO time limit
  3. Legally Binding
2. Adjudication
  1. time limit
  2. NOT binding
Arbitration: it is a settlement of dispute by 1/more chosen by the parties. the arbitrator decides the case + award
1. Decision can be incorporated into later court judgements
2. proceeds on his knowledge/exp, evidence provided or enq made
  1. makes his decision on this process
3. Arbitration Act 1996
4. Advanatage
  1. cheap
  2. quick
  3. suitable for technical matters
  4. convienient
  5. private
  6. commercially expedient
5. Litigation is possible after an arbitration award if you can prove fraud or procedural fault during arbitration
Differences between arbitration and litigation?
1. Litigation
  1. no contact between parties
  2. Litigation is generic
  3. possible for multi-party disputes
  4. Open and NOT private
  5. don't need to pay the judge/court
2. Arbitration
  1. contact between parties
  2. suitable for technical contracts. Arbitrators competent in their field
  3. Private & confidential
  4. flexibility in its procedure
  5. Arbitration awards are easier to enforce overseas (by New York Convention)
    1. common legislative standards 4 recognition of arbitration agreements + court recognition + enforcement of foreign + non-domestic arbitral awards

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M006 Conflict Avoidance & Dispute Resolution

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