Conflict Avoidance

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T017 & T016 Flashcards on Conflict Avoidance, created by alison_patey0437 on 04/15/2013.

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Created by alison_patey0437 over 6 years ago
T017 Letters of Intent
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T017 Termination & remedies for breaches outside the Contract
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Contract Practice - Performance security
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Sociology
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T017 Insurance
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Contract Practice - Interim Valuations & Payment Privisions
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Loss and Expense
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T017 Roles & Responsibilities of parties
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Contract Practice JCT OVERVIEW
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Question Answer
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.
Tell me about Arbitration? 1. arbitration is a procedure for the resolution of disputes which is under the control of the parties. 2. certain conditions must be met: a genuine dispute or difference between parties (award must be capable of enforcement). binding agreement to submit to arbitration in contract. PRIVATE 3. 3 available procedures = a) docs only (30 days) b) short hearing (30 days) c) full procedure (long)
Can you explain in detail the difference between arbitration and litigation procedures? 1. Arbitration = procedures governed by Arbitration Act 1996 2. in order to arbitrate there must be agreement between both parties 3. Parties have a wide degree of discretion as to way proceedings are conducted. 3. procedure similar to litigation with formal submission by parties, expert evidence, hearings, and decision by arbitrator. 4. Advantages = private process, parties have flexibility, arbitration awards generally easier to enforce 5. 3 types arb = short hearing (1 mth), docs (1 mth) & full procedure 6. Litigation = presentation of argument in court 7. public procedure = follows Civil Procedure Rules 8. Advantages = parties do not pay for court /judge, process can deal with multi-party disputes, civil procedure rules aim for accessibility, speed + efficiency
Why do you think the JCT2005 suite of contracts has dropped arbitration in favor of litigation as a form of dispute resolution? 1. arbitration is intended to be better but rarely works out cheaper 2. arbitration is getting more like litigation 3. Litigation has improved through Civil Procedure Rules 4. as mediation has been encouraged, less dispute reaches court ans such courts are more free which in turn reduces timescales 5. Adjudication is effectively a simplified version of arbitration and has further taken away some advantages.
Explain what you understand by arbitration, as opposed to other forms of dispute resolution procedures? 1. Negotiation The parties may through an informal, private or facilitated negotiation; process, agree to settle the dispute either at a high level or in detail; and agree to be bound by this settlement 2. Mediation and conciliation Mediation involves a neutral mediator finding middle ground between the parties with the aim of achieving a negotiated settlement. Conciliation is similar, but conciliators are empowered or required to express their views on cases or issues 3. Adjudication Adjudication is a UK statutory dispute resolution procedure. It is a relatively quick process of 28-42 days from submission of referral and it is binding until the dispute is finally determined by litigation, arbitration or by agreement. It is not dissimilar to a simplified arbitration process and hence has taken away some of the advantages of arbitration 4. Independent expert determination An independent third party is employed to decide the dispute between the parties. The expert’s decision will generally be binding 5. Arbitration A private dispute resolution process that, bar serious irregularity or legal errors, is binding with no appeal to court 6. Litigation Resolution of disputes in public courts following statutory procedure.
Explain in greater detail the key differences between arbitration and litigation procedures? Arbitration: Arbitration was always the forum for disputes involving specialist or technical knowledge. The most important legislation was the Arbitration Act 1996. In order to arbitrate, there must be agreement by both parties. The arbitrators and the parties have a wide degree of discretion as to the way in which the proceedings are conducted. Generally, though, it follows a procedure much like that in litigation, that is, formal submissions by the parties, expert evidence, hearings and then a decision by the arbitrator. Key advantages of arbitration over litigation are: It is a private process and therefore confidentiality is preserved l It uses a specialist arbitrator selected for their competence in the areas that form the core of the dispute The arbitrator and the parties have some flexibility over the procedure Arbitration awards are generally easier to enforce, particularly overseas. Litigation: Litigation involves the presentation of the respective arguments in the courts. It is a public process and therefore there is a lack of confidentiality. The process must follow the statutory procedure which in the civil courts is known as the civil procedure rules (CPR). Key advantages of litigation over arbitration are: The parties do not pay for the judge or court The process can deal with multi-party disputes The CPR aim for accessibility, speed and efficiency in resolution of disputes
What is the hierarchy of dispute resolution processes? 1. Negotiation 2. Mediation 3. Conciliation 4.Expert determination 5. Adjudication 6. Arbitration/ Litigation (all are ADR except the last 2)
What Methods can be used to avoid conflict during construction projects? 2 types: 1. Mgmt methods to achieve better risk control 2. non-escalation mechanisms
what are the differences between Arbitration and Adjudication? 1. Arbitration is a consensual process between the parties. 2. adjudication is a right by statue HGCRA 1996 3. time is limited in adjudication 4. there is NO time limit in Arbitration 5. Adjudication is not legally binding
Tell me about the method of control risk during a project to reduce conflict? Mngt methods include: a: better planning (e.g. ensuring contract docs r clear and precise) b: utilising project and business structures e.g. partnering/ integrated prj teams c: appropriate procurement methods - emphasize the value of good mgt.
What does TCC stand for? Technology and Construction Court (UK)
What are the rapid forms of dispute resolution? 1. Expert determination 2. Adjuducation
Tell me about non-escalation mechanisms that could deter conflict in projects? Non-escalation methods are there 2 try 2 resolve disputes before they escalate: 1. use appropriate procurement strategies 2. sufficient prep & Plan for tender 3. complete the design 4. correct selection of contract 5. contract docs r clear & precise 6. use business structure e.g. partnering 7. adopt good poj & commercial mgt procedures 8. early negotiation & settlement 9. tiered DR procedures in contract
what are the differences between Arbitration and litigation? 1. arbitration: there should be a contract between parties 2. Litigation: no need for a contract between parties 3. Arbitration: suitable for tech contracts 4. Litigation: its not specialized 5. Arbitration: Private and confid ntial 6. Litigation: open and public 7. Litigation: don't need to pay judge/courts 8. Litigation: multi-party disputes 9. Arbitration: enforceable overseas (New York convention)
What are the possible ways to avoid a dispute on your project? 1. acess the impact of local law on your project 2. draft clear and unambiguous contracts 3. include the right to vary works 4. include mechanism to EOT 5. inc. early warning mechanisms (resolves disputes early) 6.
what is meant by "disclosure" in arbitration the mechanism allow either party to see the files of the other
What is Early Neutral Evaluation (ENE)? its a non-binding assessment by a neutral professional. this could be used as the basis of the settlement.
As a surveyor - What processes could you adopt to minimize conflict avoidance in projects? The main conflict avoidance processes that a surveyor should know about include: a) Good management: e.g. Pro-activity and planning and managing future work, as well as raising early any issues of concern b)Clear contract documentation: capturing the specific details of the project and addressing the particular circumstances and risks of that project c) Partnering and alliancing: Building co-operation between the project participants d) Good project management: Means proactively managing all aspects of time, money and risk associated with the project. e) Good client management: : A good understanding of the client’s objectives and the client’s approach to risk is also extremely valuable, as will be maintaining good lines of communication with the client. f) Good constructor management: having an objective understanding of the project, the contract and the programme of works g) Good design team management: provision of information within the design team and from the design team to the constructor h) Good payment practice i) Record keeping: s keeping a proper record of the labour, plant and materials used in respect of a project. j) Regular reporting and pro-activity:
Explain the definition of Litigation this is the LAST resport to settle a dispute by an action in court by using the law of the land.
What does the term "Alternative Dispute Resolution" mean to you? ADR predominantly means alternative dispute resolution, and refers to processes which are alternatives to the traditional binding dispute resolution procedures of litigation and arbitration. alternative in the sense that it is providing a faster and more economic dispute resolution procedure.
Name the advantages of Litigation? more than one person can join in (multi-party) you don't have to be in the contract to use litigation its a more decisive approach
What are the pre-requisites of Arbitration? 1. existence of a dispute 2. agreement to refer the dispute to arbitration 3. Agreement to be bound by the award 4. invitation by one party to arbitration
Name some disadvantages of litigation? time consuming and very unclear results.
Have you been involved in any dispute resolution procedures to resolve any issues in your projects? only ADR procedures Negotiation = variations/ final accounts Mediation = vale house termination threat
Define Expert Determination? the resolution of a dispute by a qualified person who is experienced in the particular topic under dispute (not and arbitrator)
What are the advantages of Adjudication? 1. independent assessment 2. quick decision 3. binding for the duration of the contract wks 4. can be reassessed after the wks r complete
What is t Expert Determination? 1. Expert third party decides the dispute 2. its final, binding, cheap, quick, private
What are the disadvantages of Adjudication? 1. quick decision 2. used as an ambushing tactic 3. only binding for duration of contract wks 4.
what are the root causes of disputes? 1. economic pressure 2. wrong procurement selection 3. unclear or unfair risk allocation 4. unrealistic time/cost/quality targets 5. estimating errors/ unrealistic tender pricing 6. lack of information/ poor design 7. changes by employer 8. Adversarial industry/ culture 9. Poor Contract Admin/ lack of competence/ professionalism 10. slow/ underpayment/ non payment 11. Exaggerated claims
What are the manifestations of disputes (the different way disputes arise)? 1. variations 2. acceleration 3. disruption 4. delay 5. Prolongation 6. LAD's 7. EOT 8.L&E
What do you do if you find yourself in a dispute? 1. dispute resolution mechanisms usually set out in the contract (the rule book)
What is dispute resolution? actions to resolve contractual disagreements between parties.
Name some forms of ADR? 1. mediation 2. Conciliation 3. Neggotiation
What is conciliation? 1. dispute resolution similar to mediation 2. independant party to aid an agreement 3. conciliator has no authority to seek evidence or call witnesses 4. conciliators do not make decisions 5. messenger - shuttle dipolmacy
What is Mediation? ADR form of bringing in separate initial third party to mediate and guide a decision which optimizes the parties needs Mediation encourages coming together and agreeing
What is the difference between mediation and conciliation? Mediation attempts to bring parties together and agree based on a careful approach which best suits both parties conciliation doesn't try to bring parties together and agrees through 3rd party acting as a broker.
What is negotiation? Parties may through an informal private or facilitated negotiation process agree to settle the dispute either at high level or in detail and agree to be bound by this settlement
What is your most successful negotiation? Haven't had many as its at a higher level. but i have negotiated variations and agreed final accounts
What could indicate the success of a negotiation on a final account? both parties come away happy, costs agreed within cost report budgets.
What is adjudication? UK statutory dispute resolution procedure relatively quick process from submission of refferal binding until dispute determined by litigation or arbitration seen as simplified arbitration process
What enforces the requirement for a building contract to contain provisions for adjudication? The Housing Grants, Construction Regeneration Act 1996 (HGCRA 1996)
What contracts does it apply to? Applies to all contracts entered into after act commencement of the act and only applies to Eng, Scotland and Wales as descried in the act.