Conflict Avoidance Flashcards
Name some different forms of Alternative Dispute Resolution?
- Mediation.
- Conciliation.
- Negotiation.
Name some formal methods of dispute resolution?
- Arbitration.
- Litigation.
- Adjudication.
What would your considerations be prior to selecting a form of dispute
resolution?
- The cost of dispute resolution in proportion to the claim being sought.
- The timescales involved.
- The impact on business relationships and reputation.
What is Conciliation?
- This dispute resolution process is similar to mediation and relies on an independent third party to aid reaching an agreement.
- The conciliator has no authority to seek evidence or call witnesses.
- Conciliators are not able to make binding decisions.
- The conciliators’ role is to act primarily as the messenger and to encourage diplomacy.
What is Mediation?
- This is an alternative form of dispute resolution and relies on bringing in an impartial third party to mediate and guide a decision.
- The mediator tries to encourage a coming together of parties in order to facilitate a decision as opposed to acting only as a messenger which is the key differentiator between mediation and conciliation.
- Mediation encourages the coming together of parties and reaching an agreement.
What is dispute resolution?
Actions and processes taken to resolve contractual disagreements between parties.
What is negotiation?
- Negotiation is where the parties reach an agreement through an informal private or facilitated discussion.
- Both parties will agree to settle the dispute either at a high level or in detail and agree to be bound by this settlement.
What could indicate the success of a negotiation on a final account?
- Both parties are satisfied with the outcome and feel that a fair and reasonable compromise was reached.
- A partnering approach is adopted with both parties feeling as though their long-term relationships and reputations have been maintained.
What is adjudication?
- Adjudication is a statutory form of dispute resolution procedure available in the United Kingdom.
- It is a relatively simple and efficient method of resolving disputes without engaging in lengthy and expensive court proceedings.
- Adjudication relies on an independent third party who considers the claims of both parties.
- A binding decision is made by the adjudicator which can be appealed either through litigation or arbitration.
- It has the advantage of being time sensitive with a decision being made within 28 days.
Which contracts does adjudication apply to?
It applies to all construction contracts entered into after the act commenced within England, Scotland and Wales.
Please explain your understanding of the arbitration process?
- Arbitration is a procedure for the resolution of disputes which is under the control of the parties.
- Certain conditions must be met for example a genuine dispute or difference between the parties must have occurred with an award being capable of enforcement.
- A binding agreement must be reached to escalate the matter to arbitration.
- The proceedings are undertaken in a private setting meaning the reputations of both parties can be preserved to an extent.
Can you explain in detail the difference between arbitration and litigation procedures?
Arbitration:-
* Arbitration is governed by the Arbitration Act 1996.
* In order to arbitrate there must be an agreement to enter into arbitration by both parties.
* Parties have a wide degree of discretion as to how the proceedings are conducted.
o Procedures are similar to litigation with formal submissions by both parties, expert evidence,
hearings and a decision by the arbitrator.
* It is a private process.
Litigation:-
* Litigation differs in that proceedings are conducted in court.
* It is a public process that follows civil procedure rules.
* Despite having high costs the process can deal with multi-party disputes and civil procedure rules which aim for accessibility, speed and efficiency
What is Litigation?
Litigation is now a last resort - It can be used where ADR fails to produce a solution to deal with particular issues where a dispute involves more than two parties, or where enforcement is sought of decisions produced through other forms of dispute resolution.
E.g. such as the interpretation of a contract clause or the application of a legal principle.
Litigation, although expensive, has now been streamlined, and it can prove quicker and more effective at resolving disputes than arbitration.
