Alternative Dispute Resolution Flashcards
What is the TCC?
Technology and Construction Court (TCC).
Handles disputes about buildings, engineering and surveying.
The TCC does not normally handle cases with a value of less than £250,000 unless there is a good reason.
What is Mediation?
The parties agree on an independent, third-party neutral system to facilitate discussions between them, with the goal of reaching a settlement. The power to settle remains with the parties, but the process is led by the mediator.
- Mediation encourages coming together and agreeing.
- By mutual agreement (voluntary).
The process can be initiated at any time between the parties.
The mediator does not award a winning party.
The process is non-binding.
What is conciliation?
A process similar to mediation used in the construction industry whereby a conciliator seeks to facilitate a settlement between the parties. The conciliator does not decide any issues of law or fact but conducts a process whereby each party states its position and then attempts to work towards a
compromise.
- Independent party to aid an agreement.
- Conciliator prepares a recommendation’ which sets out their solution to the dispute, if neither party dissents from that recommendation or initiates adjudication or arbitration, then the recommendation
becomes final and binding.
What is the difference between mediation and conciliation?
In mediation, the mediator acts as a facilitator who helps the parties in agreeing.
Conciliation allows for the facilitator to play a more direct role in the solution for the dispute. The facilitator can make suggestions towards certain proposals and give advice for certain solutions.
What is an expert witness?
An expert witness is defined as a person whose experience and knowledge in a particular field is beyond what is expected of a layman. An expert witness makes his or her knowledge available to the court or other bodies, to help it understand the issue before it and reach a just and reasoned decision.
What is adjudication?
Adjudication was developed to allow for construction contract disputes to be resolved more quickly and cost-effectively than resolution through arbitration or litigation.
Its objective is to provide a fast-working solution to an issue (pending the outcome of, or without the need for, a more formal dispute resolution procedure) so that parties can quickly resume or continue work under the contract.
Can you explain how the adjudication process works in terms of timeframes?
Following the crystallisation of a dispute, either party can serve a notice on the other party of its intention to refer the dispute to adjudication.
Within 7 days of the issue of the notice, the referring party (the party commencing the proceedings) must serve upon the other party its Referral (its statement of case). If the Referral is not served within that time, the adjudication will likely be void.
The Referral must contain a detailed explanation of the referring party’s claim in respect of the dispute
identified within the notice, along with any supporting documentation.
-
Within that 7-day period, the referring party must secure the appointment of an adjudicator. This will either be a person named in the contract or, if no-one is named, by using the nominating body identified in the contract.
Following the appointment, the adjudicator will set out a timetable; this will usually permit the other
party to issue a response to the Referral.
The Adiudicator must make his decision within 28 days of the Referral.
Can the an adjudication decision period of 28 days be extended?
That time can be extended to 42 days by mutual agreement of both parties.
Is the adjudication process binding?
The adjudicator’s decision will be binding on the parties (and enforceable in court) unless the adjudicator acted outside his or her jurisdiction or was biased towards one party.
Is there an appeal process with adjudication?
There is no appeal process; however, the parties can take the same dispute to litigation (or arbitration if the contract contains an arbitration agreement).
What if a building contract does not contain provisions for adjudication?
Adjudication became a legal right in relation to construction contracts in the UK when legislation known as the Construction Act came into force.
Who pays for the adiudication?
Both parties are jointly liable for the adjudicator’s fees.
The adjudicator can usually decide who is to pay the fees and reasonable expenses.
What is arbitration?
- Arbitration is essentially a lawsuit without court involvement
