Conflict Avoidance Flashcards
What is negotiation as ADR?
NON BINDING - Parties A + B themselves attempt to resolve the issue. Confer with each other to reach a decision
Advantages – Speed, Cheap, Confidential
Disadvantages – If parties too far apart can be difficult to progress
What is Mediation/conciliation?
NON BINDING - 3rd Party helps to reach decision.
Advantages – Cheap, Encouraged by courts, Involvement of neutral party
Disadvantages – Only works if both parties agree
What is adjudication and the adjudication process?
Involves the appointment of an independent adjudicator who considers the evidence and makes a decision which is binding to all parties
The parties must meet their own costs of the adjudication, unless they have agreed that the adjudicator shall have the power to award costs.
Housing Grants Construction Regeneration Act 1996 introduced Adjudication for any contracts in writing -
• Must be a dispute i.e. dispute in payment in valuation
• Notice can be given at any time.
Process -
1. Submit notice of Adjudication to nominating body of adjudication and party B informed
2. 48hrs later Adjudicator confirms receipt
3. Within 7 days of receipt appointing body selects an adjudicator
4. 28 days later decision made by Adjudicator
5. The referring party can extend the 28 day period by 14 days, but any more must be agreed by both parties
Advantages – Simple & Efficient, Adjudicator named in contract, decision binding
Disadvantages – Process can’t be stopped once referred; decisions based on quality of the submissions
What is Arbitration?
Involves the parties agreeing to refer the dispute to a third party (the arbitrator) and agree to be bound by the arbitrator’s decision.
3 Types –
Short hearing – Arbitrator inspects works, Parties submit written statement and witness statements, 1 day hearing, Arbitrator has 1 month to make decision
Documents Only – Where the sums involved do not warrant a hearing, parties submit written and witness statements, Arbitrator has 1 month to make a decision
Full Procedure – Only used where other methods are inappropriate, expert witness can be costly
Advantages – Confidential, Cost Savings, Binding, Resolution Guaranteed
Disadvantages – Expensive, Public, Lengthy
What is Expert Determination?
The parties agreed by a contract that a third party will make a binding decision on them. The terms are therefore governed by the contract. In most cases the decision of an expert will be final, and it will not be possible to appeal that decision.
What is in the Arbitration Act (1996)?
The Act mandates that the general duty of the arbitral tribunal is to:[6]
act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent, and
adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined.
The various subsequent provisions relating to the conduct of arbitrations are largely pinned upon this overriding duty. The legislation specifies that “The tribunal shall comply with that general duty in conducting the arbitral proceedings, in its decisions on matters of procedure and evidence and in the exercise of all other powers conferred on it.”[6]
Subject to that overriding duty, the tribunal has broad discretion in relation to matters of procedure and evidence. The legislation provides that “It shall be for the tribunal to decide all procedural and evidential matters, subject to the right of the parties to agree any matter.”[7]
How do Construction Acts deal with ADR?
How do Construction Acts deal with ADR?
Part II of the HGCRA 1996 (aka “The Construction Act”) introduced the statutory requirement that an adjudication provision is incorporated into construction contracts
• The HGCRA 1996 enforces minimum requirements that every construction contract must comply with, although parties to a contract are free to devise/incorporate their own rules. If they do not, the provisions of the Scheme for Construction Contracts will apply.
• Summary of minimum requirements prescribed by the Act:
Contract must:
(a) Enable a party to give notice of intention to commence adjudication at any time;
(b) provide a timetable with the object of appointing the adjudicator and referring the dispute to him within 7 days of such notice;
(c) require the adjudicator to make his or her decision within 28 days after the dispute has been referred to him or her;
(d) allow the adjudicator to extend the 28 days by up to 14 days with the consent of the referring party;
(e) impose a duty on the adjudicator to act impartially;
(f) enable the adjudicator to take the initiative in ascertaining the facts and the law;
(g) provide that the adjudicator’s decision is binding until the dispute is finally determined by legal proceedings, arbitration or by agreement;
(h) provide that the adjudicator cannot be liable for anything done in his or her capacity as adjudicator unless the act was done in bad faith
