Conflict Avoidance Flashcards
What is dispute resolution?
Actions to resolve contractual disagreements between parties.
Name some different dispute resolution?
Mediation
Conciliation
Negotiation
What are the three formal forms of dispute resolution?
Arbitration
Litigation
Adjudication
What would you consider to select a form of dispute resolution?
The cost in proportion to the claim
The timescales involved
The impact on business relationships and reputation
What is conciliation?
Dispute resolution similar to mediation
Independent party to aid an agreement
Conciliator has no authority to seek evidence or call witnesses
Conciliators do not make decisions
Messenger – shuttle diplomacy
What is mediation?
A dispute resolution form bringing in separate impartial third party to mediate and guide a decision which optimises the parties needs.
Mediation encourages coming together and agreeing.
What is the difference between mediation and conciliation?
The mediator is a neutral party who help parties to rebuild business relationships and help them work out a solution that is mutually agreeable. There parties are directly engaged in the discussions. It is non binding and parties can revert to arbitration or litigation at any time.
Conciliation has the same aims than mediation but the processes are different. The conciliator is usually a figure of authority that the parties have turned to for guidance. The conciliator makes suggestions and the parties make the final decisions.
What is negotiation?
Parties may through an informal, private or facilitated negotiation agree to settle the dispute either at a high level or in detail and agree to be bound by this settlement.
What is adjudication?
UK statutory dispute resolution procedure
Relatively quick process from submission of referral
Binding until dispute determined by litigation or arbitration
Seen as simplified arbitration process
Tell me about Arbitration?
Arbitration is a procedure for the resolution of disputes which is under the control of the parties.
Certain conditions must be met: a genuine dispute or difference between the parties(award must be capable of enforcement). Binding agreement to submit to arbitration in contract
3 available procedures- Documents only (30 days), short hearing (30 days) and full procedure (long).
Can you explain in detail the difference between arbitration and litigation procedures?
Arbitration: procedures governed by Arbitration Act 1996
I order to arbitrate there must be an agreement by both parties.
Parties have a wide degree of discretion as to way proceedings conducted.
Procedure similar to litigation with formal submission by parties, expert evidence, heari–ngs and decision by arbitrator.
Advantages are that it is a private process, parties have flexibility, arbitration awards generally easier to enforce.
3 types- short 1 month, documents only 1 month and full procedure.
Litigation: Presentation of arguments in court.
Public process following civil procedure rules
Advantages are parties do not pay for court or judge, process can deal with multi party disputes, civil procedure rules aim for accessibility, speed and efficiency.
Why do you think JCT2005 suite of contracts has dropped arbitration in favour of litigation as a form of dispute resolution?
Arbitration is intended to be better but rarely works out cheaper
Arbitration was getting more and more like litigation.
Litigation has improved through Civil Procedure Rules.
As mediation has been encouraged, less disputes reach courts and as such courts are more free which in turn reduced timescales.
Adjudication is effectively a simplified arbitration and has further taken away some advantages.
What time scales are set out for a party to respond once Adjudication has been served?
7 days
What is the first step in resolving a dispute?
Clarifying what the disagreement is.
Who pays for dispute resolution procedures?
It is normal for each party to pay their own share but costs incurred in dealing with the dispute are generally allocated between the parties as part of any settlement achieved.
