lecture 14

Question 1

is an unresolved claim.
It can result from the failure of one or more of the parties to a claim to reach an agreeable understanding and resolution of the issues therein.

Answer 1

Dispute

Question 2

An example of a dispute is

Answer 2

1. The Owner’s refusal of a time extension or cost
   reimbursement
2. An A/E rejecting a liability issue
3. A contractor rejecting liquidated damages for late
   completion

Question 3

The best resolution of a dispute is _________________.

Answer 3

dispute avoidance in

the first place.

Question 4

often occur when the A/E’s or the initial
decision maker’s decision on a
claim is not accepted by one or both parties and the claim cannot be resolved through negotiation.

Answer 4

Disputes

Question 5

A _____ may become a dispute no matter how
responsibly the parties attempt
to resolve it.
Each party may be convinced its position is correct and that there is no further room for compromise.

Answer 5

claim

Question 6

In most cases, the failure to negotiate effectively is due to one or more of the participants failing to understand and accept the __________established by the contract documents.

Answer 6

rights, responsibilities,

and requirements

Question 7

When attempts at reaching a mutually acceptable
settlement have been unsuccessful,
the parties are obligated under the conditions of the contract to use the specified method of dispute resolution indicated in the _________.
.

Answer 7

contract documents

Question 8

_________states that if no resolution is reached after the initial decision maker’s decision, then either party can demand the other party file for mediation.

Answer 8

AIA Document A201

Question 9

If the other party does not file for mediation

, then both parties ________ and any other dispute resolution method with respect to the initial decision.

Answer 9

waive mediation

Question 10

require that the initial decision maker make a final determination on a claim and then notify the owner and contractor.

Answer 10

AIA standard general conditions

Question 11

If there is disagreement with the determination, the appealing party may within a stipulated time period provide the other party with _________ of its demand for dispute resolution.

Answer 11

written notification

Question 12

If the initial decision maker or A/E has failed to render a decision in the required time period, a demand for dispute resolution may be made by _______.

Answer 12

either party

Question 13

AIA Document A201 stipulates that if the claim relates to a mechanic’s lien, ____________ may proceed in accordance with applicable law to comply with the lien notice or filing deadlines.

Answer 13

the party asserting such claim

Question 14

ADR

Answer 14

Stands for Alternative Dispute Resolution methods.

Question 15

Act as a substitute to litigation( as the traditional
dispute resolution method). Enables contract parties to seek faster, and usually less expensive methods to resolve their disputes.
Includes, but is not limited to one of the following:
1. Arbitration
2. Mediation
3. Early Neutral Evaluation (ENE)
4. Dispute Review Boards (DRB)

Answer 15

ADR

Question 16

1. Reduced timeto disposition
2. Less costly discovery
3. More effective case management
4. Increased confidentiality
5. Facilitation of early, direct communication and understanding among the parties of the essential issues on each side of the dispute.
6. Preservation of ongoing party relations.
7. Savings in trial expenses.
8. Providing qualified, neutral experts to hear complex matters
   .

Answer 16

Advantages of ADR

Question 17

What should be considered before deciding wheter or not to use ADR?

Answer 17

1. The cost of the process relative to the amount of the dispute
   involved.
2. The importance of prompt resolution.
3. Whether an informal or formal proceeding would be beneficial.
4. Whether binding or non
   -binding options should be pursued.
5. The desirability of establishing precedence
6. Whether a transcript of proceedings should be made
7. What role do the parties want the third neutral to play

Question 18

may be defined as an arrangement or
procedure for settling disputes by obtaining the
judgment of selected impartial experts.

Answer 18

Arbitration

Question 19

Arbitration is an alternative to litigation, and its purposes are:

Answer 19

1. To obtain an early settlement of a dispute by avoiding the delay and costs of litigation.
2. To obtain the judgment of a person or persons selected because of their objectivity, knowledge, and experience in the field of the dispute.
3. To keep the hearings and evidence private
4. To reach the settlement as economically as possible.

Question 20

The decision reached at the end of the arbitration

process can be ___________ based on the arbitration terms of agreement.

Answer 20

binding or non-binding

Question 21

•This process is provided for by statute in a number of states.
•The statutes establish the authority for an independent private party, usually a lawyer or retired judge, to be retained to decide the matter
.•Avenues of appeal are the same
as if the case was heard and decided in the judicial system.
•The advantages of this process are that cases can be resolved in less time, and persons better versed in construction and construction law can be selected to hear the case.

Answer 21

Judicial reference

Question 22

is another alternative dispute resolution

method, where the disputing parties agree on selecting a go-between to facilitate the resolution of the dispute.

Answer 22

Mediation

Question 23

unlike a judge or arbitrator, has no power to impose a solution on the parties. His or her sole function is to help the litigants resolve their problems consensually.

Answer 23

The mediator

Question 24

The _____ job is to identify and narrow the issues and focus on each side’s underlying interests, convey messages between the parties, explore areas of agreement, and point out the consequences to the
parties of not settling.

Answer 24

mediator’s

Question 25

offers a confidential, non
-binding conference where the parties and their counsel present the factual and legal basis of their case to one another and to an experienced, impartial expert in the subject matter of the case in an informal way.
This is a cost-effective substitution for formal discovery and
pretrial motions enabling the parties to communicate more directly.

Answer 25

The ENE program

Question 26

Key aspects of ENE include:

Answer 26

a. Neutral evaluator identifies the primary issues of dispute, as well as areas of agreement.
b. Explores the possibility of settlement.
c. Assists the parties in formulating a discovery plan.
d. Provides an assessment of the relative strengths
and weaknesses of the parties’ positions and the value of the case.

Question 27

is not an actual trial. It is a
structured process that allows the parties to present the necessary facts and elements of the claim and
the concepts of law applicable to the claim in a
compressed period of time.
•A neutral party hearing the case is normally a skilled legal practitioner who can render an
opinion based on established case law and the limits of the contract documents.

Answer 27

The mini-trial method

Question 28

is one of the most successful ADR tools, during which each of the disputing project parties picks a board member, and these two members pick a third.

Answer 28

The Dispute Review Board (DRB)

Question 29

When dealing with a Dispute Review Board, the Owner and the Contractor must approve each other’s ____________.

Answer 29

nominees and also the third party chosen by them.

Question 30

There should be no individual communications between board members and employees of the Contractor or the Owner during the life of the
board, and all communications should be
handled by the _________.

Answer 30

board chairman

Question 31

should be to meet periodically to review the construction work and be updated on any contract changes, problems, or possible disputes.

Answer 31

The policy of the board

Question 32

During each meeting, the _______________ make joint presentation of the construction effort since last meeting.

Answer 32

project managers of the Owner and the Contractor