Conflict Avoidance Flashcards
What is the difference between arbitration and adjudication
Adjudication takes place before a judge and/or jury and is legally binding while an Arbitration proceeding is heard by an informal third party such as an Arbitrator or a panel of Arbitrators.
Adjudication is a process that unfolds in court and therefore represents a court trial.
Arbitration, in contrast, is mostly voluntary, and does not take place within a courtroom setting. It is an alternative to litigation.
What is an expert witness?
a person whose level of specialised knowledge or skill in a particular field qualifies them to present their opinion about the facts of a case during legal proceedings.
What is set-off?
Where a sum claimed under one contract can be set off against a sum due on another.
There are two ways in which a right to set-off can be claimed; a contractual right (set-off clauses) and an equitable right (if you can show that the two contracts are connected in some way).
How do various forms of contract deal with dispute avoidance and what are their provisions for resolving disputes?
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What are the legal and statutory requirements for the resolution of disputes in construction contracts?
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What are negotiation, mediation, conciliation, adjudication, arbitration, determination and litigation?
- Mediation
The goal of mediation is for a neutral third party to help disputants come to a consensus on their own. Working with parties together and sometimes separately, mediators can try to help them hammer out a resolution that is sustainable, voluntary, and nonbinding.
What are the Three Basic Types of Dispute Resolution? What to Know About Mediation, Arbitration, and Litigation
How to choose the best dispute resolution process
BY PON STAFF — ON OCTOBER 11TH, 2021 / DISPUTE RESOLUTION
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dispute resolution
When it comes to dispute resolution, there are so many choices available to us. Understandably, disputants are often confused about which process to apply to their situation. This article offers some guidance, adapted from Frank E. A. Sander and Lukasz Rozdeiczer’s chapter on the topic in The Handbook of Dispute Resolution (Jossey-Bass, 2005).
Suppose that parties and their lawyers have exhausted their attempts to negotiate a resolution. They’re ready for outside help in ending their dispute, yet they don’t know exactly where to turn.
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Here’s a review of the three basic types of dispute resolution to consider:
- Mediation
The goal of mediation is for a neutral third party to help disputants come to a consensus on their own.
Rather than imposing a solution, a professional mediator works with the conflicting sides to explore the interests underlying their positions.
Mediation can be effective at allowing parties to vent their feelings and fully explore their grievances.
Working with parties together and sometimes separately, mediators can try to help them hammer out a resolution that is sustainable, voluntary, and nonbinding.
- Arbitration
In arbitration, a neutral third party serves as a judge who is responsible for resolving the dispute. The arbitrator listens as each side argues its case and presents relevant evidence, then renders a binding decision.
The disputants can negotiate virtually any aspect of the arbitration process, including whether lawyers will be present at the time and which standards of evidence will be used. Arbitrators hand down decisions that are usually confidential and that cannot be appealed. - Litigation
litigation typically involves the parties before either a judge or a judge and jury. The judge or the jury is responsible for weighing the evidence and making a ruling. The information conveyed in hearings and trials usually enters, and stays on the public record. - Negotiation
A discussion between the parties aimed at reaching an agreement. - Conciliation
The process of adjusting or settling disputes in a friendly manner through extra judicial means. Conciliation means bringing two opposing sides together to reach a compromise in an attempt to avoid taking a case to trial. - Determination
Expert determination is well-recognised as a means of resolving disputes via an independent expert in almost all areas of the commercial world.
Typically, expert determination will be used in situations where there is specific provision in a commercial contract for disputes relating to the contract to be dealt with by way of expert determination. If there is no such provision in the contract, however, it is still possible for the parties to agree to appoint an expert to determine the issue in dispute.
- Adjudication
he legal process of resolving a dispute. The formal giving or pronouncing of a judgment or decree in a court proceeding; also the judgment or decision given. The entry of a decree by a court in respect to the parties in a case. It implies a hearing by a court, after notice, of legal evidence on the factual issue(s) involved. The equivalent of a determination. It indicates that the claims of all the parties thereto have been considered and set at rest.
Techniques for conflict avoidance by the appropriate selection of procurement routes
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