Conflict Avoidance and Dispute Resolution Flashcards
What are the different types of formal dispute resolution?
-Arbitration
-Litigation
- Adjudication
What is adjudication in construction
- 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.
- It is fast with a decision usually being provided within 28 days.
- The decision is binding unless overturned by litigation or arbitration.
What is mediation in construction?
- Mediation is an alternative form of dispute resolution.
- 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 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.
What is arbitration in construction?
- 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.
Name some forms of ADR?
- Mediation.
- Conciliation.
- Negotiation.
What is litigation in construction and what its benefits and disadvantages?
- 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
What is the difference between litigation and arbitration?
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.
- 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.
Provide a brief explanation of Arbitration, Adjudication, Litigation and Mediation?
Arbitration - has a similar process to litigation although it is a private process where the two parties present formal submissions, provide expert evidence and hearings are heard for a decision to be made by and Arbitrator. This process is governed by the Arbitration Act 1996. The decision is binding but the process is lengthy.
Adjudication - 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 which is binding unless it is overturned by litigation. It is a quick process with a result usually achieved within 28 days but the decision can be overturned by either arbitration or litigation.
Litigation - This 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. This process is lengthy (usually 12-16 months).
Mediation - This is an alternative form of dispute resolution. 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. The decision is not binding and but the parties should adhere to the decision made.
Can you provide a brief description of Mediation, Conciliation and Negotiation?
Mediation - This is an alternative form of dispute resolution. 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. The decision is not binding and but the parties should adhere to the decision made.
Conciliation - It is similar to mediation where an independent third party is relied upon to aid parties in reaching an agreement. Conciliators have no power to implement findings but act primarily to act as messengers and encourage diplomacy.
Negotiation - where parties agree to reach a settlement through and informal private or facilitated discussion. Both parties agree to be bound by the settlement.
What is dispute resolution?
This is the action and processes taken to resolve contractual disagreements between parties.
What enforces the requirement for a building contract to contain provisions for adjudication and what happens if the contract does not contain provisions for adjudication?
- The Housing Grants, Construction and Regeneration Act 1996.
- Parties still have a statutory right to adjudication assuming the contract qualifies under the construction act.
