Conflict Avoidance and Dispute Resolution

Question 1

What are the different types of formal dispute resolution?

Answer 1

-Arbitration
-Litigation
- Adjudication

Question 2

What is adjudication in construction

Answer 2

• Established by the Housing Grants, Construction and Regeneration Act 1996, it allows any party in a contract to refer a dispute to an independent adjudicator to make a decision.
• The decision is binding unless overturned by litigation or arbitration.

Question 3

What is mediation in construction?

Answer 3

• Mediation is an alternative form of dispute resolution.
• The mediator tried 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 is for parties that agree they want to try to negotiate a settlement of the issues.
• Mediators do no not come to a solution themselves or impose a solution.

Question 4

What is arbitration in construction?

Answer 4

• Arbitration is governed by the Arbitration Ace 1996.
• Formal submissions, expert evidence and hearings as would be heard in court is undertaken but the decision is instead made by an independent arbitrator.
• The procedure is private.
• The decision is final and binding.

Question 5

Name some forms of ADR?

Answer 5

• Mediation
• Conciliation.
• Negotiation

Question 6

What is litigation in construction and what its benefits and disadvantages?

Answer 6

• Litigation is the process of engaging in or contesting legal action in court as a means of resolving a dispute. The court is able to enforce or determine one party’s rights or obligations.

Advantages:
- Generally regarded as the highest quality decision making
- Judges can compel the parties to comply with time frames and have powers of sanctions for non-compliance

Drawbacks:
- Potentially greater costs if the dispute is not well managed or the other party seeks to delay the proceedings. It can last between 12 - 18 months.
- Potentially longer time period to obtain a judgment
- Proceedings are generally conducted in public

Question 7

What is the difference between litigation and arbitration?

Answer 7

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.
- In order to arbitrate there must be an agreement to enter into arbitration by both parties.
- Parties have a wide range of discretion as to how proceedings are conducted.
- 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.