Alternative Dispute Resolution

Alternative Dispute Resolution

1. Conflict avoidance processes

   • The main conflict avoidance processes that a surveyor should know about include:
     • Good management:
       • Planning and managing future work,+ raising early any issues of concern, provide confidence in the surveyor’s ability, enable probs 2 b managed.
     • Clear contract documentation:
       • Good documentation means capturing the specific details of the project and addressing the particular circumstances and risks of that project
     • Good client management:
       • 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
     • Partnering and alliancing:
       • Building co-operation between theproject participants in order to fosterteam working, problem solving and an emphasis on project delivery.
     • Good constructor management:
       • having an objective understanding of the project, the contract and the programme of works
     • Good project management:
       • means pro-actively managing all aspects of time, money and risk assoc with proj
     • Good design team management:
       • Good forward planning and the management of conflict that could arise among the design team
     • Good payment practice:
       • the valuation should be carried out and payments made promptly = avoid animosity
     • Regular reporting and pro-activity:
       • e.g. mtg mins, progress reports. manage issues causing delay, inc in cost or quality problems as soon as is practicable

2. Dispute Resolution Techniques

   • processes
     • Negotiation
       • parties work out between them how to resolve any issues that have arisen.
       • Power to settle the dispute rests with the parties
     • Mediation + Concilliation
       • parties agree on an independent, third-party neutral system to facilitate discussions between them, with the goal of reaching a settlement
       • power to settle remains with the parties, but the process is led by the mediator
     • Expert Determination
       • parties agreed by a contract that a third party will make a binding decision on them
       • most cases the decision of an expert will be final, and it will not be possible to appeal that decision
       • the decision of an expert finally determines the dispute without further recourse
     • Adjudication
       • Adjudication under section 108 of the Housing Grants, Construction and Regeneration Act 1996 (HGRCA) was introduced in May 1998
       • The Local Democracy, Economic Development and Construction Act 2009 and the updated Scheme will revise some aspects of the adjudication process
       • Act applies = either party may appoint adjudicator within 7 days of serving a Notice of Dispute
         • 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
     • Arbitration
       • Contract between the parties must contain a written agreement to arbitrate
       • Applies? = can use arbitration procedure, such as the Construction Industry Model Arbitration Rules or ..... covered by Arbitration Act 1996
     • litigation

3. Differences between Arbitriation and Adjudication

   • Arbitration
     • consensual in accordance with statute
     • NO time limit
     • Legally Binding
   • Adjudication
     • time limit
     • NOT binding

4. Arbitration: it is a settlement of dispute by 1/more chosen by the parties. the arbitrator decides the case + award

   • Decision can be incorporated into later court judgements
   • proceeds on his knowledge/exp, evidence provided or enq made
     • makes his decision on this process
   • Arbitration Act 1996
   • Advanatage
     • cheap
     • quick
     • suitable for technical matters
     • convienient
     • private
     • commercially expedient
   • Litigation is possible after an arbitration award if you can prove fraud or procedural fault during arbitration

5. Differences between arbitration and litigation?

   • Litigation
     • no contact between parties
     • Litigation is generic
     • possible for multi-party disputes
     • Open and NOT private
     • don't need to pay the judge/court
   • Arbitration
     • contact between parties
     • suitable for technical contracts. Arbitrators competent in their field
     • Private & confidential
     • flexibility in its procedure
     • Arbitration awards are easier to enforce overseas (by New York Convention)
       • common legislative standards 4 recognition of arbitration agreements + court recognition + enforcement of foreign + non-domestic arbitral awards