Conflict Avoidance and Dispute Resolution Flashcards
What are the different forms of Dispute resolution?
- Negotiation
- Mediation
- Adjudication
- Arbitration
- Litigation
- Conciliation
- Expert Determination
Can you describe the different forms of Dispute resolution?
- Negotiation: discussion between parties resolve issues. The power to settle a dispute is with the parties.
- Mediation: Parties use an independent third party called a mediator to facilitate discussions with the goal of reaching a settlement. The power to settle a dispute is with the parties.
- Adjudication: Housing Grants construction and regeneration act that allows parties to refer construction disputes to adjudication. the parties refer their dispute to an independent third party called an adjudicator who makes a decision that will be binding unless referred to litigation
- Arbitration: It is in line with the Arbitration Act 1996, the parties refer their dispute to an independent third party called an arbitrator who makes a binding decision unless referred to litigation. Arbitration is usually used in international disputes or disputes of larger monitory amounts.
- Litigation: Legal proceedings in courts with solicitors and a Judge. The Judge makes a legal and binding decision that can be enforceable. The court proceedings are in the public domain.
- Conciliation: Parties use an independent third party called a conciliator to facilitate a settlement. Once a settlement is reached and parties do not dissent the conciliator can proceed to initiate adjudication or arbitration.
- Expert Determination: The parties refer the dispute to impartial third-party expert and then will be bound by their decision.
What are the different forms of Alternate Dispute Resolution?
- Negotiation
- Mediation
- Adjudication
- Arbitration
What is the Role of an Adjudicator?
An independent third party that makes a decision on a dispute. Their decision is binding until finally determined by arbitration or litigation. There is no appeal process. An adjudicator’s decision is confidential.
What is the difference between the role of a mediator, conciliator, adjudicator, arbitrator and a Judge?
- The mediator does not have the power to settle the dispute. It remains with the parties. the mediator facilitates discussions.
- The conciliator facilitates discussions but does not decide any issues of law or fact but
- The adjudicator has the power to make a binding decision.
- The arbitrator has the power to make a binding decision and request undisclosed information called discovery.
- The Judge makes a legal and binding decision that can be enforceable.
Can you outline the adjudication process?
- Once a dispute arises and one party decides to adjudicate. They are required to service a notice to the other party on the intention to adjudicate.
- The referring party is required to provide a Referral statement with precise details of grounds of the dispute including supporting documentation within 7 days of notice.
- The referring party must also secure an adjudicator who is either named in the contract or an adjudicating body.
- The adjudicator will set a timetable and permit the other party to provide a response
What is the period that an adjudicator is required to make a decision?
The adjudicator has 28 days to make a decision.
Can the decision period be extended?
Yes. The period can be extended by 14 days by mutual agreement with the parties.
What is an ombudsman?
An independent third-party redress. They are appointed to investigate complaints about companies and organisations. The claimant must try to resolve the complaint with the organisation before referring to an ombudsman.
Under the contract who appoints the Adjudicator?
The parties agree to refer to an adjudicating nominating body or name a specific Adjudicator
Adjudicating Nominating Bodies: RICS, Chartered Institute of Arbitrators, Royal Institute of British Architects.
It is in the best interest of the parties not to name specific adjudicators and refer to a nominating body as availability issues can arise.
Describe the outcome of the case you referred to – Energy works Hull Vs MW High Tech?
- Nature of the works: construction of a power plant
- Employer: Energy works Hull
- Contractor: MW High Tech
- Basis of the case: Employer’s right to Terminate contract, Contractor’s right to suspend works
- MW high tech suspended the works alleging breach of contract due to the provision of non-compliance fuel provided by Energy works
- Energy works terminating contract due to suspension and performance issues.
- Outcome:
- The Contractor did not have a right to suspend works under the contract unless non-payment. Employer had paid Contractor.
- Employer had the right to terminate under common law and contract due to the suspension of works by the Contractor.
What is the termination clause in NEC3?
**NEC termination clause: **
Clause 91.7: gives the employer the right to terminate if an event occurs which:
* stops the Contractor completing the whole of the works or
* stops the Contractor completing the whole of the works by the date for planned Completion shown on the Accepted Programme and is forecast to delay Completion of the whole of the works by more than 13 weeks,
and which
* neither party could prevent and
* an experienced contractor would have judged at the Contract Date to have such a small chance of occurring that it would have been unreasonable to have allow for it.”
What is ‘Smash and Grab’ Adjudication?
The absence of a valid and timely payment notice and/or pay less notice by the Employer to the Contractor gives opportunity to the Contractor to claims for payment of the sum claimed in the relevant payment application.
What is a ‘True Value’ Adjudication?
This is where the adjudicator carries out a valuation of the Contractor’s application in order to determine the ‘true value’ of that application.
When can a ‘true value’ adjudication be undertaken by the Employer?
Only after the Contractor has carried out a ‘Smash and Grab’ adjudication.
