6. CONFLICT AVOIDANCE, MANAGEMENT AND DISPUTE RESOLUTION PROCEDURES

Question 1

Name some different forms of Alternative Dispute Resolution?

Answer 1

adjudication
mediation
arbitration
expert determination.

Question 2

Name some formal methods of dispute resolution?

Answer 2

• Arbitration.
• Litigation.
• Adjudication.

Question 3

What would your considerations be prior to selecting a form of dispute resolution?

Answer 3

• The cost of dispute resolution in proportion to the claim being sought.
• The timescales involved.
• The impact on business relationships and reputation.

Question 4

What is Conciliation?

Answer 4

• This dispute resolution process is similar to mediation and relies on an independent third party to aid reaching an agreement.
• The conciliator has no authority to seek evidence or call witnesses.
• Conciliators are not able to make binding decisions.
• The conciliators’ role is to act primarily as the messenger and to encourage diplomacy

Like mediation, conciliation is a voluntary, flexible, confidential, and interest based process. The parties seek to reach an amicable dispute settlement with the assistance of the conciliator, who acts as a neutral third party.

The main difference between conciliation and mediation proceedings is that, at some point during the conciliation, the conciliator will be asked by the parties to provide them with a non-binding settlement proposal. A mediator, by contrast, will in most cases and as a matter of principle, refrain from making such a proposal

Question 5

What is Mediation?

Answer 5

The process of mediation is about resolving disputes between parties and a third-party mediator will support both parties in coming to an agreement.

Question 6

What is dispute resolution?

Answer 6

• Actions and processes taken to resolve contractual disagreements between parties

Question 7

What is negotiation?

Answer 7

• Negotiation is where the parties reach an agreement through an informal private discussion.
• Both parties will agree to settle the dispute either at a high level or in detail and agree to be bound by this settlement.

Question 8

What is your most successful negotiation?

Answer 8

Cricklewood Example

Question 9

What could indicate the success of a negotiation on a final account?

Answer 9

• Both parties are satisfied with the outcome and feel that a fair and reasonable compromise was reached.
• A partnering approach is adopted with both parties feeling as though their long-term relationships and reputations have been maintained.

Question 10

What is adjudication?

Answer 10

• Adjudication is a statutory form of dispute resolution procedure available in the United Kingdom.
• It is a relatively simple and efficient method of resolving disputes without engaging in lengthy and expensive court proceedings.
• Adjudication relies on an independent third party who considers the claims of both parties.
• A binding decision is made by the adjudicator which can be appealed either through litigation or
  arbitration.
• It has the advantage of being time sensitive with a decision being made within 28 days

Question 11

What enforces the requirement for a building contract to contain provisions for adjudication?

Answer 11

• The Housing grants, Construction and Regeneration Act 1996 (Construction Act).

Question 12

Which contracts does adjudication apply to?

Answer 12

• It applies to all construction contracts entered into after the act commenced within England, Scotland and Wales.

Question 13

What if a building contract does not contain provisions for adjudication?

Answer 13

• Parties still have the statutory right to adjudication assuming the contract qualifies under the construction act.
• Failing this the Scheme for construction contracts will apply in its entirety.

Question 14

Please explain your understanding of the arbitration process?

Answer 14

• Arbitration is a procedure for the resolution of disputes which is under the control of the parties.
• Certain conditions must be met for example a genuine dispute or difference between the parties must have occurred with an award being capable of enforcement.
• A binding agreement must be reached to escalate the matter to arbitration.
• The proceedings are undertaken in a private setting meaning the reputations of both parties can be preserved to an extent.

Question 15

Can you explain in detail the difference between arbitration and litigation procedures?

Answer 15

• Arbitration:-
  o Arbitration is governed by the Arbitration Act 1996.
  o In order to arbitrate there must be an agreement to enter into arbitration by both parties.
  o Parties have a wide degree of discretion as to how the proceedings are conducted.
  o Procedures are similar to litigation with formal submissions by both parties, expert evidence, hearings and a decision by the arbitrator.
  o It is a private process.
• Litigation:-
  o Litigation differs in that proceedings are conducted in court.
  o It is a public process that follows civil procedure rules.
  o Despite having high costs the process can deal with multi-party disputes and civil procedure
  rules which aim for accessibility, speed and efficiency.

Question 16

Can you name me some forms of dispute resolution?

Answer 16

adjudication
mediation
arbitration
expert determination
Negotiation
Conciliation
Litigation