Conflict Avoidance And Dispute Resolution Flashcards

Question

What is Conciliation?

Answer 1

``` Dispute resolution similar to mediation. Independent party to aid an agreement. Conciliator has no authority to seek evidence or call witnesses. Conciliators do not make decisions. Messenger – shuttle diplomacy ```

Answer 2

ADR form of bringing in separate impartial third party to mediate and guide a decision which optimises the parties’ needs. Mediation encourages coming together and agreeing.

Answer 3

The mediator is a neutral party who help parties to rebuild business relationships and help them to work out a solution that is mutually agreeable. There parties are directly engaged in the discussions. It is non binding and parties can revert to arbitration or litigation at any time. Conciliation has the same aims than mediation but the processes are different. The conciliator is usually a figure of authority that the parties have turned to for guidance. The conciliator makes suggestions and the parties make the final decisions.

Answer 4

Parties may through an informal private or facilitated negotiation process agree to settle the dispute either at a high level or in detail and agree to be bound by this settlement

Answer 5

Both parties come away happy, both parties feel that negotiations were handled in a fair and reasonable manner and costs are agreed within cost report budgets.

Answer 6

UK statutory dispute resolution procedure Relatively quick process from submission of referral Binding until dispute determined by litigation or arbitration Seen as simplified arbitration process.

Answer 7

The Housing grants, Construction and Regeneration Act 1996. (so called Construction Act)

Answer 8

Arbitration is a procedure for the resolution of disputes which is under the control of the parties. Certain conditions must be met: a genuine dispute or difference between the parties (award must be capable of enforcement). Binding agreement to submit to arbitration in contract. Private. Three available procedures: Documents only (30 days), short hearing (30 days) and full procedure (long).

Answer 9

Arbitration: procedures governed by Arbitration Act 1996 In order to arbitrate there must be an agreement by both parties. Parties have a wide degree of discretion as to way proceedings conducted. Procedure similar to litigation with formal submission by parties, expert evidence, hearings and decision by arbitrator Advantages are that it is a private process, parties have flexibility, arbitration awards generally easier to enforce 3 types: short hearing (1 month), documents only (1 month) and full procedure. Litigation: Presentation of arguments in court. Public process following Civil Procedure Rules Advantages: Parties do not pay for court or judge, process can deal with multi-party disputes, civil procedure rules aim for accessibility, speed and efficiency.

Answer 10

intended to ensure that payments are made promptly throughout the supply chain and that disputes are resolved swiftly. Provisions of the act include: The right to be paid in interim, periodic or stage payments. The right to be informed of the amount due, or any amounts to be withheld. The right to suspend performance for non-payment. The right to adjudication. Disallowing pay when paid clauses.

Answer 11

The dates for payments must be set out in the contract. The client (or specified person) must issue a payment notice within five days of the date for payment, even if no amount is due. Alternatively, if the contract allows, the contractor may make an application for payment, which is treated as if it is the payment notice. The client (or specified person) must issue a pay less notice (previously a withholding notice) if they intend to pay less than the amount set out in the payment notice, setting out the basis for its calculation. The notified sum is payable by the final date for payment. If the client (or specified person) fails to issue a payment notice, the contractor may issue a default payment notice. The final date for payment is extended by the period between when the client should have issued a payment notice and when the contractor issued the default payment notice. If the client does not issue a pay less notice, they must pay the amount in the default payment notice. Pay when certified clauses are no longer allowed, and the release of retention cannot be prevented by conditions within another contract. So for example work contractors on a management contract project must have half of their retention released when their part of the works reach practical completion, not when the project as a whole reaches practical completion. This also applies to trade contractors on construction management contracts. There are also changes to the right to suspend work for non-payment or to suspend part of the works and to claim costs and expenses incurred and extension of time resulting from the suspension.

Answer 12

JCT MW = Arbitration Arbitration, a form of alternative dispute resolution (ADR), is a way to resolve disputes outside the judiciary courts. The dispute will be decided by one or more persons (the 'arbitrators', 'arbiters' or 'arbitral tribunal'), which renders the 'arbitration award'. An arbitration decision or award is legally binding on both sides and enforceable in the courts, unless all parties stipulate that the arbitration process and decision are non-binding

Answer 13

Arbitration is a procedure in which both sides agree to let an impartial third party, the arbitrator, decide the case. The arbitrator may be a lawyer, or may be an expert in the field of the dispute, or in some cases, an arbitration panel. The arbitrator’s decision, known as an award, is legally binding and can be enforced through the courts. Normally, there is no appeal, however there are exceptions in which appeals may be accepted. In adjudication, the decision is the responsibility of a third party adjudicator selected by the parties to the dispute. Adjudication decisions are binding unless and until they are revised by subsequent arbitration or litigation after practical completion, or by agreement between the parties (hence the term 'pay now argue later'). There is no right of appeal and limited right to resist enforcement. Generally, adjudicators do not have the power to award costs (other than their own fees and expenses). Adjudication must adhere to strict timescales and typically takes up to 28 days.

Answer 14

Five of the UK’s leading professional bodies for construction and engineering have joined together to help the industry reduce the costs of conflict, and deliver major infrastructure and property development projects on time and on budget.

Answer 15

Dispute Boards are designed to avoid conflict and, if disputes do arise, deal with them quickly and effectively. The purpose of a Dispute Board is to save money, ensure the project is delivered on time and on budget, and to help to maintain relationships

Answer 16

* Confidentiality – Any disputes and decisions will remain confidential. * Expertise – Members of the Dispute Board will have been selected for their knowledge and expertise before a dispute has arisen. * Flexibility – Parties can agree the procedure in advance and can agree any changes to it during the course of the project. * Prevention of Disputes – The existence of the Dispute Board can prevent disputes escalating because Parties are reluctant to be seen making frivolous claims. This is an incentive for the Parties to reach a negotiated settlement between them. * Relationships – Dispute Boards can help to preserve relationships, as the process is consensual and all Parties are invested in the process. * Understanding – The Dispute Board will gain a good working knowledge of the project as they will undertake regular site visits and create a relationship with team members. When a dispute arises, the Board will have a much better understand than a Tribunal, for example, which would only be appointed after a dispute has arisen.

Answer 17

RICS Dispute Resolution Service (DRS) is the world’s oldest and largest provider of alternative dispute resolution (ADR) services in the land, property and construction industries. Over the last four decades, DRS has appointed dispute resolvers in nearly a quarter of a million cases. Internationally, DRS resolves around $2 billion US dollars’ worth of disputes every year – keeping these cases out of the courts.

Answer 18

Adjudication | However, negotiation and mediation should be considered first.

Answer 19

``` Conflict avoidance processes Three pillars of dispute resolution Dispute resolution techniques ADR Standard form contracts Conflict Avoidance Dispute Resolution Procedures Dispute Escalation Clauses Interim Valuations and Claims ```

Answer 20

``` Good Management Clear Contract Documentation Partnering and Alliancing Good Payment Practice Record Keeping Regular reporting and proactivity ```

Answer 21

1 negotiation – the problem-solving efforts of the parties themselves 2 mediation or conciliation – a third-party intervention does not lead to a binding decision being imposed on the parties; and 3 an adjudicative process – the final outcome is determined by a third party who does impose a binding decision on the parties.

Answer 22

The process whereby the parties work out between them how to resolve any issues that have arisen. Power to settle the dispute rests with the parties.

Answer 23

The parties agree on an independent, third-party neutral system to facilitate discussions between them, with the goal of reaching a settlement. The power to settle remains with the parties, but the process is led by the mediator.

Answer 24

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. This means that the decision of an expert finally determines the dispute without further recourse.

Answer 25

Adjudication under section 108 of the Housing Grants, Construction and Regeneration Act 1996 (HGRCA) was introduced in May 1998. The Local Democracy, Economic Development and Construction Act 2009 and the updated Scheme will revise some aspects of the adjudication process. It has been widely used in the construction industry and applies not only to building contracts but also to professional appointments. If the Act applies to a contract then either party may request the appointment of an adjudicator to be made within seven days of serving a Notice of Dispute, and the adjudicator has 28 days from issue of the Referral within which to issue a decision. That decision will bind the parties and in most cases be readily enforceable in the Technology and Construction Court (TCC). The TCC is the part of the High Court that deals with construction related litigation.

Answer 26

For arbitration to apply, the contract between the parties must contain a written agreement to arbitrate. Where it applies the parties might choose to refer to or incorporate an arbitration procedure, such as the Construction Industry Model Arbitration Rules. Alternatively, the arbitration can simply be covered by the applicable legislation, such as the Arbitration Act 1996. Many jurisdictions around the world contain legislation dealing with arbitration, often based upon the United Nations Commission on International Trade Law (UNCITRAL) Model Arbitration Law.

Answer 27

The courts have inherent jurisdiction to hear a dispute in respect of just about anything. In the absence of any other procedure, the parties will have a right to refer their matter to an appropriate court. The procedure is governed by the Civil Procedure Rules, and the nature, complexity and value of the dispute will determine which court will hear a particular dispute. Courts have the widest jurisdiction and in addition to determining disputes and declarations, they can also issue Charging Orders, summon witnesses and involve the third parties in the dispute as necessary

Answer 28

dispute boards sit somewhere between avoidance and dispute resolution. Their genesis is in Dispute Review or Recommendation Boards (DRBs). Three dispute board members are appointed at the start of a project. They become familiar with the project by reviewing some of the project documentation and also regularly visiting the site during the course of the works. If and as issues arise they can be asked for their non-binding recommendation. This may relate to general disagreements or disputes. Often their recommendations are used to resolve disputes between the parties, thus avoiding formal disputes. Dispute Adjudication Boards (DABs), on the other hand, follow a very similar pattern but they make formal written decisions which bind the parties in respect of any disputes that arise. There is therefore a clear distinction between a DRB and DAB. Generically they are called DBs. There is one variation on the theme and that is a combined dispute board which was developed by the International Chamber of Commerce (ICC). The ICC’s Combined Dispute Board (CDB) procedure provides for recommendations or decisions. The parties may request the dispute board to deliver either a recommendation or a binding decision. If the parties cannot agree then a dispute board can decide whether simply to issue a non-binding recommendation or a written binding decision.

Answer 29

ADR predominantly means alternative dispute resolution, and refers to processes which are alternatives to the traditional binding dispute resolution procedures of litigation and arbitration. It is alternative in the sense that it is providing a faster and more economic dispute resolution procedure. Originally ADR was used to describe a consensual alternative approach, which helps to maintain business relationships. More broad definition could include adjudication, negotiation or mediation, or indeed some other form of contractual dispute resolution technique. The important point is that the appropriate dispute resolution procedure should aim to resolve the dispute in an appropriate economic manner, taking into account the circumstances of the dispute. Business relationships should be maintained, while resolving disputes at the lowest cost and within a sensibly fast timetable. Confidentiality can be maintained, as indeed should flexibility in the process. This should lead to a greater satisfaction with the dispute resolution procedure for the parties.

Answer 30

Adjudication decisions are binding unless and until they are revised by subsequent arbitration or litigation after practical completion, or by agreement between the parties (hence the term 'pay now argue later'). There is no right of appeal and limited right to resist enforcement. Generally, adjudicators do not have the power to award costs (other than their own fees and expenses). Adjudication must adhere to strict timescales and typically takes up to 28 days.

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Conflict Avoidance And Dispute Resolution Flashcards

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