You are the independent project manager on a portfolio of projects, your client seeks advice on Conflict Management and Dispute Resolution. Write a report detailing what provisions your

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Conflict Management and Dispute Resolution

Elective Module 66061

MSc Management of Projects

Peter Fenn

MACE

Manchester

M13 9PL

Tel 01613064233

Email: [email protected]

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Conflict Management and Dispute Resolution

Table Of Contents And Workbook Outline

How To Use This Workbook

1. Introduction

2. Conflict Theory

3. Conflict Management and Dispute Avoidance

4. Bribery and Corruption

5. Negotiation

6. Mediation Principles

7. ADR Processes and Game Theory

8. Cooperation and collaboration

9. Dispute Avoidance

10. Comparison of Dispute Resolution

11. International Law and International Disputes

12. Conclusion

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How to Use this Workbook

This workbook has been specially designed and written for the elective module in

Conflict Management and Dispute Resolution on the MSc in Management of Projects.

It will help you to plan your study and to work systematically through the course. You

should use this workbook as the basis of your studies. The workbook is just part of the

material which is provided at the Blackboard Virtual Learning Environment [VLE].

There are 5 main teaching documents:

1. This Workbook [ available at any time as an ebook and on Blackboard]

2. The Learning Modules [available ONLY at Blackboard]

3. I give a synchronous lecture for each learning module and the Lecture Slides

are available at any time on Blackboard

4. All the lectures are copied and are available as asynchronous learning

5. As preparation for each topic I present a brief 10-15 minute video detailing the

content of the coming weeks learning module and full lecture.

In addition I expect that you will do some reading. I try to give more reading, web

material, videos etc in each week’s folder on Bb.

Content

The workbook is divided into sections that reflect the syllabus. Each section begins with

an introduction, which briefly explains the topic to be studied and may suggest areas to

be focused upon. This is followed by a list of objectives that should be achieved after

studying the section.

The substantive part of the text must be read very carefully, and you must ensure that

you understand the concepts before moving on to the next section. It is important that

you are sure that you have achieved the objectives identified at the beginning of the

section.

Questions

In this workbook there are boxed questions in the text; and these are repeated in the

web based learning modules. These are designed to make you stop and think about the

issues, and sometimes the rules of law, you are studying. You should answer these

questions before proceeding. However, not every question will have a clear answer.

This is the nature of the subject.

After the substantive part of each section, you will find some short revision type

questions. These basic questions are a good way of checking the extent of your

understanding of the main concepts. In spite of the fact that they are basic, you are

strongly recommended to do these questions before moving on to the next section. The

questions can be answered by reference to the text and some self study. If you are unable

to answer the questions you should read the section again to identify areas that were

unclear to you at the first reading.

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Following the revision questions, there will normally be an essay-style question. This

is the type of question that you can expect as part of your assessment. You should

attempt these questions to see if you can identify the issues raised.

Writing an answer

It is important to understand how to write an answer to a question. When answering an

essay style question, you should try to structure your answer: start; middle and end is

always a good structure. Start your answer with a short introductory paragraph

outlining your treatment of the topic; set the stage for the text which follows. In the

middle deal with the substantive issues; what are they? At the end make sure you have

answered the question; and reach conclusions based on your text in the middle.

Questions have a command work e.g. discuss – this requires at least two viewpoints or

opposing theories; make sure you deal with the command word..

Having determined the issues in a problem (and remember there may be more than one

issue in a question) you may have to state the law that applies to the particular issue. In

Mediation this is less likely than other areas e.g. arbitration where a statute applies. If

the law is from a statute, you will need to state which Act and which section applies.

So, for example, s 11 of the Unfair Contract Terms Act 1977. It is not necessary to

memorise s 11, but you should be able to state the effect of the section. Having done so

you must then show how it relates to the problem you are dealing with and try to come

to a conclusion on that issue. Sometimes it will not be possible to arrive at a firm

decision, normally because the question does not give you all the facts. It is permissible

to say that a particular conclusion is more or less likely in the circumstances. It is also

permissible to give one or two possibilities, but you must be careful not to lose sight of

the rest of the question.

The relevant law may also be found in the decision of a case; again less likely in

Mediation but needs to carefully monitored. You will need to state the name of the case

and the principle it provides. When stating the name it is not necessary to put down the

entire citation just the name of the case is sufficient: for example, Donoghue v

Stevenson. Should you be unable to remember the entire case name, simply 'the

Donoghue Case' will suffice. When you cannot remember either part of the name, but

remember some salient facts, which will identify the case, you may state those facts

very briefly. For example, in relation to the above, you may say, 'in the case of the snail

in the ginger beer bottle'. Do not panic if you do not remember the case name, it is more

important to state the principle involved. Try to remember the most important cases in

each topic, rather than all the case names in the list. Many of the cases merely illustrate

a point, rather than create new law. These illustrative cases will help you to understand

how the courts apply already established principles of law.

Having identified the issues and stated the law, you must apply the law to the particular

set of facts that you have been given. This process must be repeated for all the issues

the question raises before you can finally come to a conclusion.

Revision and assessment technique

The following are just a few suggestions on matters you might like to have in mind

when revising for and writing the assessment.

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You should plan your revision in good time. Apportion enough time to each topic that

you are studying. It is a good idea to test your self after revising each topic. This should

include writing an assessment style answer to time, as explained below.

You should be careful to note mark allocations on the questions. It is pointless to spend

an excessive amount of time in producing a lengthy answer to part of a question that

only merits a few marks, whilst giving a short answer to the part meriting higher marks.

Deal with the command in a question and answer the question; that is the question

posed, not the question you wish had been posed!

I hope that you will find this course stimulating and challenging. It is hoped that when

you have completed the course you will have a sound appreciation of the basic

principles of Conflict Management and Dispute Resolution

Good luck with your studies!

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Introduction

Chapter 1

Some issues

Why teach a course on conflict and disputes for project managers? I am neither a

lawyer nor a project manager, but I have taught such courses to Engineers and a

postgraduate course to Project Managers for more than 10 years. The Engineers course

is at MEng level but might be described as an undergraduate level course; the Project

Management course is post-graduate MSc. Both professionals need to know about

conflict and dispute issues but the study of law is a peripheral issue. I have been

involved in commercial disputes for longer, these nearly always involve lawyers and

often Project Managers or Engineers. Recently the Project Manager’s course has

become truly international in one year, 2018, more than 250 students from almost 30

countries took part. It was clear to me that Project Managers [PMs from now] had to

understand some law. I wonder if somewhere else in one of the 10500 universes someone

else is writing a book called Project Management for lawyers using similar logic.

I set a piece of coursework for many years. In my feedback.: “ Students reported time

spent by Project Manager in dealing with conflict and dispute ranging between 10 and

70 to 80!% of their total time?” This is the danger or the problem in this field its

dominated by anecdote and unsupported data. One academic paper can be found with

a simple search.

MANAGERS SPEND 42% OF THEIR TIME ON REACHING AGREEMENT WITH

OTHERS WHEN CONFLICT OCCURS. Conflict Resolution in Project

Management

Amy Ohlendorf

https://www.umsl.edu/~sauterv/analysis/488_f01_papers/Ohlendorf.htm

The citation to support this Ford J. Workplace conflict: facts and figures.

URL:http://mediate.com/workplace/ford1.cfm returns

The Page cannot be found.

The page you are looking for might have been removed, had its name changed, or is

temporarily unavailable. Also, please check for a typo in your address. (error 404).

There are many reasons why I chose to teach a course for PMs ; not least because there

are many books out there but few for PMs. So to further confuse things I’ve called this

one conflict management and dispute resolution for PMs, because strictly its not Law.

Like many things around legal issues this book will be plagued by definitions. Is it:

Law; the law; or laws? These debates are great fun, but not for us here. You will find

many things that are different in the study of legal issues. For example Project

Management tends to be taught on the Instructivist approach where an instructor

delivers the ‘right’ answer. While law [call it what you will] adopts a Socratic style;

here scenarios are developed and the leader argues with a position perhaps by

developing Reductio ad absurdum. There have been strong pressures to purge courts

of Latin so that is the last bit in this book and you can look it up, Socratic too.

What do the law and Project Management think of each other? Perhaps you have a

view on the law. A recent case helps with what the law thinks of Project Management

and leads to the some more introductory issue. In The Trustees of Ampleforth Abbey

Trust v Turner & Townsend Project Management Limited 144 Con LR 115, [2012]

TCLR 8, [2012] EWHC 2137 (TCC) it was noted at para 76:

“it may be impossible in any event, to define with precision the expression "project

manager"”

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The first issue is Legal Citation and reporting, this is a bewildering field. Many, many

cases weave their way through the court system; historically only certain people were

allowed to report cases because this then formed the case law system which is a feature

of the Common Law system in England and Wales (see later). Information Technology

IT has changed everything and now the majesty of the case law system is available with

the click of a mouse. Try and find the The Trustees of Ampleforth Abbey Trust v

Turner & Townsend Project Management Limited case and read the judgement, does

the judge say that Project Management is simply common sense?

The second issue is that the Ampleforth Case might be seen as the latest in a line of

cases dealing with the role of PMs, other relevant cases include: Royal Brompton

Hospital NHS Trust v Hammond (No. 9) [2002] EWHC 2037 (TCC) and Pozzollanic

Lytag Ltd v Bryan Hobson Associates [1998] EWHC 285 (TCC), [2000] B.L.R. 233.

Do PMs need to know the cases? There are so many? I suggest that PMs need to be

aware of what a line of cases means but of course they don’t need to know the cases.

That’s what lawyers do and leads to the next point.

Your search for the Ampleforth case will undoubtedly have thrown up many

commentaries on the case; free to access on the internet. Written mostly by lawyers,

but some by specialist Project Managers with an interest in the law; some by those

irritating swots who have the ability to be dual qualified. Why write things and then

give the words away for free? Mine are collected together and sold as a ridiculously

expensive book. The answer to my question raises so many interesting issues and I do

not, for a moment, cast any doubt or aspersions on the people who write things then

give them away for free. If you are interested do a google search on Web2.0 and watch

hours of your life float away, gone for ever.

This book takes the model of the independent Project Manager appointed, and paid for,

by the client. This is not the only model, if you are a project manager within an

organisation; the issues raised translate to your model. Either way stand back and

reflect; read the Ampleforth case and see the issues raised there, translate them to your

particular model.

It is impossible to write a disputes unit without reference to some law, both statute and

case law, but this is not a legal reference book. If you seek a reference look elsewhere,

there are plenty.

Finally I hope I have answered my own question: Why write a book about disputes and

project management? By posing more questions, just like Socrates.

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Some issues of law

The United Kingdom of Great Britain and Northern Ireland (UK) consists of four

countries: England, Wales, Scotland and Northern Ireland. Some law applies

throughout the whole of the UK; some applies in only one, two or three countries. This

book deals with law in England and Wales; remember things are different elsewhere,

in Scotland and Northern Ireland. Whatever you do don’t say British Law; particularly

to a Welshman or a Scot or Irishman.

Sources of Law

Where does law come from? A nice easy one; but of course like everything else it gets

difficult, the two principal sources of English Law are legislation and common law.

Two important additional sources of law are: European Union law and the European

Convention on Human Rights. I first started thinking about and writing this book before

‘Brexit’ and a major influence on the vote was that we, whoever we are, should not be

bound by European courts. I am finishing writing the book as exit looms, who knows

what will happen to our laws, whoever our refers to. Legislation is by statute. Common

law (sometimes case law or precedent) is developed by judges through decisions in

courts when individual cases are decided, as opposed to the statutes made or adopted

through legislative process

There is no single series of documents that contains the whole of the law of England

and Wales. This is often surprising to non lawyers and lawyers from other jurisdictions

The legal Profession[s]

Historically the legal profession in England had two branches; barristers and solicitors,

each with its own controlling body. The two branches did different things, and most

notably barristers were the clients voice in higher court; they alone had rights of

audience i.e. they could be heard. Those restrictions are mostly gone and more players

have now been added to the mix: e.g. paralegals and legal executives. The term lawyer

will be used from now, and lawyers will advise which specialist to consult. In the same

way that you see a doctor who then refers you for specialist advice to a specialist doctor;

you see a lawyer who then advises which specialist lawyer might be consulted. That

specialist lawyer might be a paralegal; a legal executive; a non lawyer; a solicitor; a

barrister or a specialist senior barrister who might be a Queens Counsel. The first

lawyer you consult might be specialist; might be a paralegal; a legal executive; a non

lawyer; a solicitor; a barrister or a specialist senior barrister who might be a Queens

Counsel. You get the idea.

The legal system in England and Wales

The United Kingdom has three separate legal systems; one each for England and Wales,

Scotland and Northern Ireland. This reflects its historical origins and the fact that both

Scotland and Ireland, and later Northern Ireland, retained their own legal systems and

traditions under Acts of Union 1707 and 1800. This section deals with the judiciary of

England and Wales.

The justice system is one of the three branches of the state. The other two branches are

the executive, or the government, and the legislature, which in England and Wales is

the two Houses of Parliament. In other [mostly] democracies these three branches of

the state are separate from each other by a principle known as separation of powers.

Roles and functions are defined within written constitutions, preventing the

concentration of power in any one branch and enabling each branch to serve as a check

on the other two branches. The United Kingdom does not have a constitution that is

contained in a written constitutional instrument; and periodically attempts are made to

deal with this. These are fascinating points of Law and politics but hardly the detail of

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a book on legal issues for PMs. If you want to read more, and the structure of the court

system try The Courts and Tribunals Judiciary Website at

https://www.judiciary.gov.uk/.

Stratification

Justinian was a Roman emperor from 527 to 565, he was famous for many things, his

role in formalizing or codifying the law of Rome came through his legal writing. The

Institutes of Justinian was Justinian’s codification and is useful here because it

demonstrates the law’s predilection for stratification.

Law is stratified or divided in many way. Substantive or procedure. Criminal or civil.

Common law or statute. Public or Private. All attempts to stratify are difficult at the

boundaries and the layers or divides often overlap.

Procedural law comprises the set of rules that govern the proceedings of the tribunal

[court or arbitration]. The tribunal needs to conform to the standards setup by

procedural law during the proceedings. These rules ensure fair practice and consistency

in natural justice and rule of law in England or "due process" in the USA.

Substantive law deals with the legal relationship between people or the people and the

state. Therefore, substantive law defines the rights and duties of the people. Procedural

law lays down the rules by which they are enforced. Of course the differences between

the two need to be studied in greater detail if you are interested for better understanding.

More than that will not be said here.

Criminal law seeks to punish the wrongdoer. Civil law seeks the redress of wrongs

by compelling compensation or restitution: the wrongdoer is not punished.

Private law applies to relationships between individuals in a legal system. e.g. contracts

.

Public law applies to the relationship between an individual and the government. e.g.

criminal law

Common Law or statute ? As English law first developed there was little legislation

or statute. Judges made law by their decisions on cases, these laws were followed or

bound the whole country by the system of precedent; the common law of England

developed. As society developed and parliamentary democracy was born law made by

the monarch was replaced by laws made by legislation of parliament. The two co-exist

to produce the law of the land but a Common law system became a way of describing

jurisdictions which followed the English system. As opposed to a Common Law

system, Civil Law system is used to describe jurisdictions which follow a Roman or

codified system [i.e. the law is written down].

This book is mostly about Private Law not Public , it is mostly about Civil not Criminal

[though much of Health and Safety Law is Criminal law], it is mostly about substantive

law not procedural law. Although some procedural law must be considered [Arbitration

and Adjudication]. This book is mostly about the common law not civil law but again

some Statute must be considered [again Arbitration and Adjudication are examples.

So now its confusing: civil law as opposed to criminal law but civil law can also mean

a non common or codified system, and back to Justinian. But before that what are the

legal systems around the world? Again its simple but its not. The systems are:

Common Law [e.g. England and Wales]

Civil Law [e.g. most but not all mainland Europe]

Bijuridical Law [e.g. South Africa]

Fidqh or Islamic Law [e.g. Saudi Arabia]

Fig x shows a world map of legal systems

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This work has been released into the public domain by its author at the English

Wikipedia project. This applies worldwide. Source

http://upload.wikimedia.org/wikipedia/commons/2/21/LegalSystemsOfTheWorldMap

.png

Fig x A world map of legal systems

Red Common Law; blue Civil Law; brown Bijuridical Law; yellow Fidqh or Islamic

Law

. Remember that by their very nature the explanations offered here are simplistic you

need to read more than the material here. An example from elsewhere: introductory

science explains atomic structure as a nucleus circled by electrons; intermediary science

includes protons and neutrons; advanced science talks of many, many sub atomic and

sub nuclear particles. An introduction to contract and tort cannot go direct to the

advanced explanation.

PMs come from and work in many nations and it would be impossible to consider all

the aspects of every project in each country. However many of the issues facing the

parties to projects are generic; and by considering certain of these issues in differing

countries you will be able to analyse the effect of risk and contract conditions; no matter

what the project or the contract or how the risk is allocated.

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