ADR Flashcards
What does ADR mean?
Alternative Dispute Resolution
Whats the procedure of ADR in JCT?
Mediation
Adjudication
Arbitration
Whats the procedure of ADR in NEC?
Adjudication is the default option in NEC
What is Adjudication? explain the pro’s and con’s
The UK Housing Grants, Construction and Regeneration Act 1996 provides for
statutory adjudication
Is there a specific process on ADR?
No, unless it has expressed in the contract regarding a process
Whats the difference between Interpersonal and Intrapersonal?
Interpersonal - Behavioural attitude (conflict between two people)
Intrapersonal- When you have internal conflict about yourself (such as self-guilt)
What is Mediation? explain the pro’s and con’s
Mediation is a non-adversarial way of resolving difficult situations.
Allows parties to evaluate strength of each
other’s cases before deciding whether to
proceed further
Mediator’s duty is to facilitate a solution, not to
impose his decision upon the parties.
The mediator must be impartial and must not judge
Outcome: open and honest dialogue with the aim of identifying a mutually acceptable outcome.
Mediation is about collaborating rather than blaming.
Mediation is holds non- legally binding
What is Arbitration? explain the pro’s and con’s
Pro’s
Give the arbitrator more time to make the ‘best’ judgement
Con’s
Slow
More expensive
Less certain than High Court litigation
What is the difference between Adjudication and Arbitration?
- The judgement timing decision
- The arbitrator, has general power to award costs.
- Adjudicator’s decision (award) though initially binding;
is subject to completely new hearing; i.e. appeal; - Only cost,quality,time related cases can be heard in Adjudication.
How do you prevent Dispute in the Construction Industry?
Litigation
Personalities and emotions are kept out of the dispute
Managers are made aware of potential disputes so they can take the necessary action and intervene
There is a legally enforceable contract in place
What is a Negotiation Clause?
The negotiation clause can be expressed in a contract
What are the main causes of Disputes?
a) Failure to properly administer the contract;
b) Poorly drafted or incomplete/unsubstantiated claims;
c) Employer/Contractor/Subcontractor failing to understand and/or comply with its contractual obligation;
d) Errors and/or omissions in the contract documents;
e) Incomplete design information or employer requirements (for Design and Build and D&C)
What are the main causes of Disputes?
a) Failure to properly administer the contract;
b) Poorly drafted or incomplete/unsubstantiated claims;
c) Employer/Contractor/Subcontractor failing to understand and/or comply with its contractual obligation;
d) Errors and/or omissions in the contract documents;
e) Incomplete design information or employer requirements (for Design and Build and D&C)
Acceleration of project completion time Delay Design related problems Variation Quality of workmanship Site conditions
What are 3 main factors which cause dispute?
uncertainty
contractual problems
behaviour
What does Litigation mean?
Litigation is a case law in a civil court of law.
High Court
Crown Court
Supreme Court
What is the Negotiation process?
If negotiation occurs, it is at the start of the ADR. It is however non-legal binding and is voluntary
What is the process of Adjudication?
Provide a timetable to the opponent
Provide a 7 day notice
The Adjudicator must make a decision within 28 days
A 14 day extension is available if the party who referred the dispute agrees
Adjudication is legally binding
The adjudicator is not liable for anything unless it was done in bad faith
If the contract do not comply with the requirements of subsections 1 – 4;
the adjudication provisions of the Scheme for Construction Contracts apply
When should Adjudication be used?
the Act establishing did not reference to nature
of disputes to be referred to adjudicator; BUT,
construction professionals usually advice that
disputes relating to
- project cost
- claims
- time
- issues quality of work
- other issues that are likely to impede or delay sectional or entire project completions should be referred to an adjudicator.
How must an Adjudicator act? and How are they selected?
10 act impartially in carrying out his duties;
2) avoid incurring any unnecessary expenses;
3) take initiative in ascertaining thee facts
4) Do not apportion blame; rather see solution to the
dispute
The adjudicator is selected by both parties
What is the purpose of Arbitration?
- Obtain fair resolution of disputes by an impartial tribunal without unnecessary delay or expense
- The parties should be free to agree how their disputes are to be resolved, subject only to such safeguards as are necessary to protection public interest
3.In matters governed by “Arbitration” the court should
not intervene except.
What is Arbitration?
An agreement to submit to arbitration both present and future disputes (whether they are contractual or not). The agreement must be evidenced in writing.
When might a Arbitrators judgement not be legally binding?
on the grounds of procedural irregularity or by agreement of the parties.
Process wise, arbitration and adjudication are similar;
adjudication may assess several issues at a time,
whereas an arbitrator may only pass an award on single issues.
In arbitration, contracting parties usually spell out or agree terms and conditions of arbitrator’s award on certain issues
What are the differences between Arbitration and Litigation?
Arbitration:
- Private Proceedings
- May be adjudicated by experts in the field
- Ease of international enforcement
Litigation:
- Public proceedings
- Adjudicated by a judge
- Difficulty in enforcing foreign judgements
- Court hearing
When might Negotiation be used instead of Mediation?
Negotiation
- In trade situations
- Technical choices
Mediation
- When there is tension
- Conflict occurs
