Conflict Avoidance Flashcards
What is dispute resolution?
A term that refers to several processes that can be used to resolve a conflict, dispute or claim.
What is ADR?
Alternative Dispute Resolution - refers to the alternatives to the traditional binding procedures of Arbitration or Litigation.
What are the main forms of ADR?
- Negotiation - parties work out disputes by themselves
- Mediation - parties agree on an independent party to facilitate discussions to reach a settlement. Power still remains with the parties.
- Adjudication - a legal alternative to arbitration and litigation. Deigned to allow for disputes to be resolved more quickly and cost effectively. Power is with the adjudicator.
What is Mediation?
3rd party is appointed to facilitate the mediation between the two parties so that they can reach an agreement on their own.
What is expert mediation/conciliation?
Same as mediation but mediator/conciliator forms their own opinion to help facilitate the discussion.
What is arbitration? (Not ADR)
Undertaken by the TCC (Technology and Construction Court). Quicker alternative to litigation but is a formal process which produces a legally binding decision. Can only be appealed through litigation.
What is Adjudication?
Governed by HGCRA. Quicker, more cost effective solution to arbitration or litigation. Parties can resume quickly or continue to work under the contract.
What is the HGCRA?
Housing Grants, Construction and Regeneration Act 1996
What is the difference between expert witness and expert determination?
Expert witness gives evidence or is called in as a subject matter expert.
In expert determination, the appointed expert isn’t a witness.
What happens if your contract doesn’t include for adjudication?
Doesn’t matter. Under the Housing Grants and Regeneration Construction Act (HGRCA), anyone has a right to adjudication.
Section 108 of HGRCA introduced right to adjudicate.
What is the RICS guidance for conflict avoidance?
Conflict avoidance dispute resolution in construction black book.
When can mediation become legally binding?
Only when the parties involved reach an agreement and sign a settlement agreement. This signed agreement is then enforceable by law.
