Conflict avoidance, management and dispute
resolution procedures
| Question | Answer |
|---|---|
| What is dispute resolution? | Dispute resolution refers to the various methods and processes used to resolve disagreements between parties, particularly in contractual or legal disputes. These methods can range from informal negotiations to formal legal proceedings, with the goal of finding a fair and effective solution to the dispute. |
| What are the main formal methods of dispute resolution? What are the Three Pillars of dispute resolution? | Formal dispute resolution methods include:- 1. Arbitration – This is a private dispute resolution process where an independent arbitrator makes a binding decision based on the evidence and arguments presented by both parties. Arbitration is often used in commercial contracts as an alternative to court proceedings. 2. Litigation – This is the process of resolving disputes through the court system. It involves legal proceedings before a judge (and sometimes a jury), where each party presents its case and a legally binding judgment is issued. Litigation follows formal procedures and can be costly and time consuming. 3. Adjudication – This is a statutory dispute resolution process in UK, particularly relevant to the construction industry. An independent adjudicator is appointed to review the claims of both parties and make a binding decision within a short timeframe, typically 28 days. |
| What are the main forms of Alternative Dispute Resolution? | There are three distinct processes and all dispute resolution techniques are built upon these processes. They are: 1. negotiation – the problem-solving efforts of the parties themselves 2. mediation or conciliation – a third-party intervention does not lead to a binding decision being imposed on the parties; and 3. an adjudicative process – the final outcome is determined by a third party who does impose a binding decision on the parties. |
| What factors should be considered before selecting a form of dispute resolution? | Before deciding on a method of dispute resolution, several important factors should be considered including:- 1. The cost involved – The expense of resolving a dispute should be proportionate to the value of the claim. Some methods such as litigation, can be significantly more expensive than alternative options like mediation or adjudication. 2. Time constraints – The timeframe in which a resolution is required may influence the choice of dispute resolution method. For instance, adjudication provides a decision within 28 days, whereas litigation can take months or even years. 3. Impact on business relationships and reputation – The approach taken to resolve a dispute can affect ongoing business relationships. Mediation and negotiation are more collaborative methods that encourage cooperation, whereas litigation and arbitration can be adversarial and potentially damage relationships. |
| What is negotiation? | Negotiation is a process in which two or more parties communicate directly, either privately or with the assistance of representatives, to reach a mutually acceptable resolution. It is an informal method of dispute resolution that allows the parties to discuss their concerns, make concessions where necessary and agree on a settlement. Once an agreement is reached, both parties are typically bound by the terms they have negotiated. |
| What is mediation? | Mediation is an alternative dispute resolution process in which a neutral and impartial third party, known as a mediator, facilitates discussions between the disputing parties. The mediator’s role is to encourage open communication, assist in identifying areas of agreement, and guide the parties toward a mutually acceptable solution. Mediation is often preferred because it promotes cooperation and preserves business relationships |
| What is conciliation? | Conciliation is a dispute resolution process that is similar to mediation and involves an independent third party who facilitates communication between the disputing parties to help them reach an agreement. The role of the conciliator is primarily to encourage dialogue and diplomacy, but they do not have the authority to seek evidence, call witnesses or impose a binding decision. However, unlike a mediator, a conciliator may take a more active role in proposing solutions. |
| What is your most successful negotiation? | This is a subjective question that depends on the individual’s experience. A strong response should outline a real-life negotiation experience by incorporating key details such as:- The nature of the project – Describe the project or situation in which the negotiation took place. The dispute involved – Explain the issue that led to the negotiation and why resolution was necessary. Preparation process – Detail any steps taken before the negotiation, such as internal meetings, gathering supporting documents or developing a negotiation strategy. Negotiation strategy – Discuss the key points that were non-negotiable and the aspects where compromises were made. Explain how these decisions were determined. Outcome and impact – Describe the final resolution and how it benefited not only the immediate parties involved but also the long-term success of the project and business relationships. Highlight any collaborative approaches, such as fostering a long-term partnership. |
| What could indicate the success of a negotiation on a final account? | The success of a negotiation regarding a final account can be measured by several factors, including:- Satisfaction of both parties – A successful negotiation results in both parties feeling that a fair and reasonable compromise has been achieved. Neither side should feel as though they have been unfairly disadvantaged. Preservation of business relationships – A positive negotiation outcome ensures that both parties maintain a professional and cooperative relationship, allowing for future collaboration. A partnering approach – If both parties adopt a long-term, cooperative mindset and focus on mutual benefit rather than short-term gain, this can indicate a successful negotiation. |
| What is adjudication? | Adjudication is a statutory dispute resolution process commonly used in the construction industry within the United Kingdom. It is designed to provide a quick and cost-effective means of resolving disputes without the need for lengthy court proceedings. In adjudication, an independent adjudicator is appointed to assess the claims of both parties and issue a binding decision. Although the decision is legally binding, it can be challenged through arbitration or litigation. One of the key advantages of adjudication is its efficiency as decisions are typically made within 28 days. |
| Please explain your understanding of the arbitration process. | Arbitration is a private and legally binding dispute resolution process in which an independent arbitrator is appointed to review the evidence and make a decision. It differs from litigation because it allows the parties greater control over the process, including the selection of the arbitrator and the procedural rules. Arbitration requires a pre-existing agreement between the parties to refer disputes to arbitration. It is often used in commercial contracts due to its confidentiality and flexibility. |
| Can you explain in detail the difference between arbitration and litigation procedures? | Arbitration is governed by the Arbitration Act 1996, arbitration is a private dispute resolution process that requires both parties to agree to its use. The proceedings are flexible, allowing the parties to determine the procedure and they take place in a confidential setting. The arbitrator’s decision is legally binding. Litigation involves formal legal proceedings in court, following civil procedure rules. It is a public process and court judgments are legally binding. Although litigation can be costly and time-consuming, it allows for multi-party disputes to be addressed within an established legal framework. |
| What is the Contra-proferentem rule? | A rule in contract law which states that any clause considered to be ambiguous should be interpreted against the interests of the party that requested that the clause be included. |
| What are Pre-action protocols? | Pre-action protocols explain the conduct and set out the steps the court would normally expect parties to take before commencing proceedings for particular types of civil claims. (In UK Law) Before commencing proceedings, the court will expect the parties to have exchanged sufficient information to— (a) understand each other’s position; (b) make decisions about how to proceed; (c) try to settle the issues without proceedings; (d) consider a form of Alternative Dispute Resolution (ADR) to assist with settlement; (e) support the efficient management of those proceedings; and (f) reduce the costs of resolving the dispute. |
| What is ADR alternative to? | Generally ADR is what falls outside government judicial system (Litigation). But some experts consider ADR is all except Arbitration and Litigation. |
| What are the different ADR procedures? | Negotiation, Mediation and Conciliation, Expert determination, Adjudication, Dispute Review or Recommendation Boards, Dispute Adjudication Boards, Mini-trial |
| What is Expert determination? | Independent Expert Determination allows parties to appoint a neutral expert to determine issues in dispute. It is also one of the types of ADR mechanisms suggested by courts to settle disputes in preference to litigation. As a confidential form of dispute resolution, expert determination enables parties to agree a timetable with the expert who will be a person with specialist or technical knowledge relevant to the dispute. Comparative to arbitration or litigation, this is less formal and can operate with greater flexibility. |
| What is a Mini-trial? | A minitrial is an alternative dispute resolution method with attorneys on each side presenting their case as they would at an actual trial . Minitrials are private, voluntary events attended by representatives from each side who have authority to settle . A neutral third party or parties may also act as judges or jurors and may render an advisory opinion on the case. Usually, each side presents an abbreviated version of the case that would be presented at trial and the minitrial operates with more relaxed rules regarding discovery and case presentation than would be in place at a formal trial. Minitrials are confidential and non-binding and are meant to provide each side of the case with a clearer view of the arguments before negotiating a settlement. |
| What is Expert witness? | An expert witness is a person whose opinion by virtue of education, training, certification, skills or experience, is accepted by the judge as an expert. The judge may consider the witness’s specialized (scientific, technical or other) opinion about evidence or about facts before the court within the expert’s area of expertise, referred to as an “expert opinion”. Expert witnesses may also deliver “expert evidence” within the area of their expertise. Their testimony may be rebutted by testimony from other experts or by other evidence or facts. |
| What is Adhoc arbitration? | A form of arbitration where the parties and the arbitrators independently determine the procedure without the involvement of an arbitral institution. The parties are under discretion to choose designation of rules, applicable law, procedures and administrative support. Proceedings under ad hoc arbitration are more flexible, cheaper and faster than an administered proceeding. The absence of administrative fees alone makes ad hoc arbitration a popular choice. |
| What is Fast-track arbitration? | The term fast-track arbitration, or accelerated arbitration, is commonly used to describe arbitration proceedings that are conducted within specified time limits based on a relating agreement between the parties. While fast-track proceedings can entail substantial pressure on the parties, counsels and arbitrators involved, they also usually reduce the time taken from the initiation of the proceedings until the rendering of an award by the arbitral tribunal and thereby serve as a means of achieving a settlement of the dispute within a shorter period of time. Several arbitral institutions to some extent offer specific rules for fast-track proceedings. These rules are usually applied by virtue of an explicit agreement by the parties or due to the fulfillment of specific criteria such as a maximum amount in dispute. |
| What is hot-tubbing or concurrent expert evidence? | Hot-tubbing is legal slang for concurrent expert evidence, involves experts from the same discipline, or sometimes more than one discipline, giving evidence at the same time and in each other’s presence. The experts are sworn in together, and sit in front of the judge, who puts the same questions to each expert in turn, effectively acting as ‘chair’ of a debate between the experts. |
| What is the New York convention? | The Convention requires courts of contracting states to give effect to private agreements to arbitrate and to recognize and enforce arbitration awards made in other contracting states. Widely considered the foundational instrument for international arbitration, it applies to arbitrations which are not considered as domestic awards in the state where recognition and enforcement is sought. |
| What does a tribunal award consist of? | Relief, cost of arbitration, compensation, damages, interest. |
| When can an Arbitral award be challenged? | an arbitral award can be set aside only if the party furnishes proof that a) A party was under some incapacity b) Arbitration agreement is not valid under law c) Party was not given proper notice of of the Appointment of the Arbitrator or of the Arbitral Proceedings or that he was otherwise unable to present his case d) Arbitral award was beyond the scope of the submission to arbitration e) Composition of the Arbitral tribunal was faulty |
| What is a Dispute board? | A dispute board or dispute review board (DRB) or dispute adjudication board (DAB) is a ‘job-site’ dispute adjudication process. Three dispute board members are appointed at the start of a project. They become familiar with the project by reviewing some of the project documentation and also regularly visiting the site during the course of the works. If and as issues arise they can be referred to the Dispute Boards. Fidic (1999) form of contracts contain DAB (Dispute Adjudication Boards) provision with one or three members. DAB members must be impartial. DAB decision is contractual and all parties should abide it. When any dispute flowing from the contract or the work can not be resolved by the parties it is referred to the DAB for Decision. |
| What are the types of Dispute Boards? | 1. Dispute review boards (DRB) make recommendations rather than binding decisions. 2. Dispute adjudication boards (DAB) make a binding decision about any Dispute referred to it. 3. Combined Dispute boards (CDB) rules provide that the Dispute board could make a recommendation or a binding decision. 4. Dispute resolution advisor (DRA) is a single person Dispute board. |
| What are the types of DAB? | 1. Full term or standing DAB – DAB appointed from the beginning of the Project (FIDIC Red book ) 2. Adhoc DAB – DAB is formed only after the dispute (Silver and Yellow FIDIC 1999) |
| Why do international contractors prefer Arbitration over Litigation? | Arbitration is confidential whereas Litigation is public. Arbitration is cheaper than Litigation. |
| What is flip-flop arbitration? | It is a fast track mode of arbitration where both parties present their cases to the arbitrator within some time limit. After that they give a draft award in a sealed envelope to the arbitrator. The arbitrator has to then choose one of the 2 drafts without any changes. The more reasonable an award is, the more likely it will be chosen. So parties will not submit very ambitious awards. Flip-flop arbitration is also known as “pendulum arbitration’ or ‘baseball arbitration’ or ‘last best offer arbitration’. |
| What is Med-Arb? | Med-arb is a hybrid, two-stage ADR process. It usually involves the parties agreeing to grant a mediator power to convert automatically to being an arbitrator, and to make a legally binding arbitral award, if the mediation fails to result in a settlement of the relevant dispute. The arbitration phase of the process will be legally binding, and the arbitrator’s award will be enforceable like an award rendered in standard arbitration proceedings, which is usually advantageous. |
| What is the difference between a Mediator and an Arbitrator? | Mediator can meet with the parties privately and discuss issues in respect of the dispute in order to find a settlement. An arbitrator cannot therefore speak privately with the parties. Mediator does not give binding decisions, an Arbitrator does. |
| What is Early Neutral Evaluation? | A non-binding form of alternative dispute resolution. In an early neutral evaluation, the neutral, who is likely to be a judge, retired judge or Queen’s Counsel, hears each party’s submissions and then states their view on the likely outcome at trial. That view is without prejudice and has no binding effect. It is a flexible way to resolve business disputes without the parties needing to resort to full-scale litigation or arbitration. Like other alternative dispute resolution methods, one of the main reasons you may wish to engage with the ENE process is with a view to saving time and money. |
| What are the main Conflict Avoidance processes that a surveyor should know about? | 1. Good Management – Proactivity and planning and managing future work, as well as raising early any issues of concern, provide confidence in the surveyor’s ability, enabling problems to be analysed and managed. 2. Clear contract documentation – Good documentation means capturing the specific details of the project and addressing the particular circumstances and risks of that project. 3. Partnering and alliancing: Building co-operation between the project participants in order to foster team working, problem solving and an emphasis on project delivery can assist in the avoidance of disputes. 4. Good project management: Means proactively managing all aspects of time, money and risk associated with the project. 5. 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. This will assist in identifying how risks and issues are to be dealt with within the contract documentation and throughout the project. Good lines of communication will mean that the surveyor can warn the client about issues and problems that are within the surveyor’s services under the appointment with the client, and then discuss how those issues might best be dealt with. 6. Good constructor management – means having an objective understanding of the project, the contract and the programme of works. 7. Good design team management: Good forward planning and the management of conflict that could arise among the design team or between the design team and the constructor are also crucial for the avoidance of dispute. 8. Good payment practice: the valuation should be carried out and payments made promptly. 9. Record keeping: Many disputes can be resolved by retrospectively considering records that have been kept during the course of the procurement or the carrying out of a project. This means keeping a proper record of the labour, plant and materials used in respect of a project. It will also mean obtaining a daily record of the site’s activities as well as regularly obtaining progress reports. Importantly, this should also include a record of resource movement. In other words, when change occurs, some record of how that change has impacted upon the project should be made contemporaneously. 10. Regular reporting and proactivity: The regular monitoring of cost, progress and quality is important for the success of any project. This may take the form of minutes of meetings, progress reports, drop lines on programmes, and photos. It is more important to raise and manage any issues that are causing delay, any increases in cost or quality problems as soon as is practically possible. |
| What is Project Mediation and Standing neutrals? | It requires the appointment of one or two project mediators at the outset of the project, who become familiar with the project and the individuals involved. They attend site occasionally and keep up with the progress of the project. They cannot make any binding decisions, but instead adopt mediation techniques in order to facilitate communications between the parties, and help resolve any issues that might arise during the project. Unlike a dispute resolution process, they can liaise with each party individually in the absence of the other party. Project mediators are therefore ‘standing neutrals’ and can be called upon during the project to resolve a dispute, and even hold a formal mediation. |
| What are the benefits of Arbitration over Litigation? And vice versa. | The advantage of arbitration for a client is that it is private and confidential, and should provide the benefit of an industry-qualified arbitrator. Some parties prefer the confidential nature of arbitration in order to avoid publicly airing their disputes but arbitration is not always the most convenient method for hearing multi-party disputes. For example, if a client is a property owner and their property suffers from defective workmanship and design, they might need to claim against the contractor and certain members of the design team. If the contracts with those parties do not contain carefully drafted ‘joinder’ provisions that allow the arbitrations to be consolidated, there is a danger that individual arbitrations will have to be held, incurring greater cost and possibly reaching different decisions. The court is able to hear multiparty cases more readily and more economically. |
| What are the different ADR in standard forms of contract? | 1. JCT – Mediation, Adjudication, Arbitration, Litigation 2. ICE – any dispute will be referred to the engineer under the contract, who would then make a decision which would be binding. If the contractor did not accept that decision then the matter could be referred to arbitration. The introduction of adjudication meant that disputes could be referred to adjudication at any time. 3. FIDIC 1987 Red Book – Refer to Engineer, then Arbitration 4. FIDIC 1999 Red Book – DAB, Arbitration 5. FIDIC 2017 Red Book – DAAB Dispute Adjudication/Avoidance Board |
| What are the main categories of Legal systems? | 1. Civil law 2. Common law |
| What is the difference between Civil law and Common law legal system? | 1. Civil law is fully codified, highly systemized and structured. It contains broad general principles without setting out the details. In Common law, Principles appear in the reported judgments, Rules seem to be more specific and detailed. 2. Source of law – Common law: Mainly from case law from previous judgments. Statutes are also referred. Civil law: Mostly based Codified legislation. Case law is mostly irrelevant. 3 .Interpretation of Contracts – Common Law: Respects freedom of Contract, Primary focus on the written words in the contract. Civil Law: Interest of fairness (as against freedom of contract), Primary focus on the wider context and intentions of the parties, Tribunals have power to rewrite the parties’ agreement. 4. Judicial procedure – Common Law: Parties collect evidence and present, More reliance on evidence of fact, oral arguments, Parties appoint experts, Judges are appointed from senior lawyers in practice. Civil Law: Judge plays main role in collecting evidence, Trials are based on written evidence, Court appoints the experts, Judges are separately trained and appointed. |
| Which Established Common law principles are not recognized in UAE? | •Time at large •Prevention principle •Fitness for purpose •Pre estimated LD’s |
| Is Sharia is the only source of UAE law? | Islamic Sharia is a source of UAE law, but it is not the only source. Where UAE law contains a specific provision, UAE courts will give effect to that provision. A UAE court will pass judgment according to Sharia in the absence of a provision of UAE law covering the issue to be determined. |
| What is the midnight clause? | When the parties are unable to resolve the disputes within themselves seeking the dispute resolution mechanism is the last remedy. That’s why it is called midnight clause. |
| What is an Ombudsman? | Ombudsman is a person who investigates, reports on, and helps settle complaints : an individual usually affiliated with an organization or business who serves as an advocate for patients, consumers, employees, etc. |
| What is Technology and Construction Court? | The TCC is the part of the High Court that deals with construction related litigation in UK. |
| What is Police Inter-court? | The International Criminal Police Organization – INTERPOL, commonly known as Interpol, is an international organization that facilitates worldwide police cooperation and crime control. It is the world’s largest international police organization. |
| Which ADR is there in your contract? Which one will you recommend? | This will be specific to each individual candidate. |
| What are the ways to avoid Conflict as per RICS guidance note? | 1. Clear contract documentation 2. Partnering and alliancing 3. Good design team management 4. Good client management 5. Good project management |
| What are the prerequisites of commencing an Arbitration? | First any dispute should be referred to the Engineer who shall make a decision. If either party is not satisfied with the Engineer’s decision, then they can serve notice to commence arbitration. both parties must agree to submit their dispute to arbitration. |
| If New York Convention is not applicable then what is the way to enforce the award? | 1. Enforcement via bilateral enforcement treaties – check if there is a bilateral treaty or multilateral convention for the recognition and enforcement of arbitral awards to which the two states are party 2. Enforcement via third party states – Where State C is not party to the New York Convention, it may nevertheless be possible for an award made in State A to be enforced there if State A and State B are both states party to the New York Convention and there is a bilateral or multilateral treaty or convention for the recognition and enforcement of court judgments to which each of State B and State C are party. In that case: The party seeking enforcement should apply to the courts of State B for recognition of the judgment under the New York Convention; and The resulting court judgment can be exported to State C and enforced under the bilateral or multilateral treaty or convention for the recognition and enforcement of court judgments to which both State B and State C are party. |
| What are the minimum clauses that you will add in the conditions of Contracts to avoid disputes? | 1. the scope of work 2. the payment terms 3. dispute resolution mechanisms 4. change management |
| Disadvantage of Expert Determination? | limited rights to appeal the expert’s decision. If the decision is wrong, you may have to accept it. You can only appeal an expert’s decision in certain circumstances, such as if the determination procedure itself was unfair. |
| When would you prefer Litigation over Arbitration? | 1. when the opposing party is uncooperative or unwilling to engage in arbitration. In such cases, the court system provides a means to compel the other party to participate and follow through with the legal process. 2. dispute involving multiple parties |
| What can be your advice to avoid disputes in pre contract stage? | 1) Well defined scope of works 2) Clearly defined duties, rights and obligations of parties 3) Particular Conditions being well written and unambiguous 4) Law of the Contract must be consistent with the conditions of the contract 5) Ensuring balance risk allocation to the parties by choosing the correct contract form. 6) Contractor being made aware of all reasonable project information to aid in pricing and planning to avoid unforeseeable circumstances. 8) Ensure competent project administrator(s) are engaged for the execution of the project. 10) Ensure efficient payment mechanisms are implemented, as well-organized cashflow is the life line of every successful project. |
| What is The RICS Dispute Resolution Service (DRS)? | The RICS Dispute Resolution Service (DRS) provides impartial, professional solutions for resolving disputes in the built environment. These services are known as alternative dispute resolution (ADR) methods, which help parties resolve issues efficiently, cost-effectively, and without the need for lengthy litigation in court. Various services provided are: Adjudication services Arbitration services Mediation & court referred services Expert services |
