Conflict Avoidance & Dispute Resolution

Question 1

Name some forms of Alternative Dispute Resolution

Answer 1

Mediation
Conciliation
Negotiation

Question 2

Name some formal methods of dispute resolution

Answer 2

Arbitration
Litigation
Adjudication

Question 3

What should your considerations be prior to selecting a form of dispute resolution?

Answer 3

The cost of dispute resolution in proportion to the claim being brought
The timescales involved
The impact on business relationships and reputation

Question 4

What is conciliation?

Answer 4

A dispute resolution process similar to mediation, and relies on an independent third party to aid reaching an agreement

The conciliator has no authority to seek evidence or call witnesses

Conciliators are not able to make binding decisions

The conciliators role is to act primarily as the messenger and to encourage dipolomacy

Question 5

What is mediation?

Answer 5

This is an alternative form of dispute resolution and relies on bringing in an impartial third party to mediate and guide a decision

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 difference between mediation and conciliation

Mediation encourages the coming together of parties and reaching an agreement

Question 6

What is dispute resolution?

Answer 6

Actions and processes taken to resolve contractual disagreements between parties

Question 7

What is negotiation?

Answer 7

Negotiation is where the parties reach an agreement through an informal private or facilitated discussion

Both parties will agree to settle the dispute either at a high level or in detail and agree to be bound by the settlement

Question 8

What could indicate the success of a negotiation on a final account?

Answer 8

Both parties are satisfied with the outcome and feel that a fair and reasonable compromise was reached

A partnering approach is adopted with both parties feeling as though their long-term relationships and reputations have been maintained

Question 9

What is adjudication?

Answer 9

A statutory form of dispute resolution procedure available in the UK

It is a relatively simple and efficient method of resolving disputes without engage in in lengthy and expensive court proceedings

Adjudication relies on an independent third party who considers the claims of both parties

A binding decision is made by the adjudicator which can be appealed either through litigation or arbitration

It has the advantage of being time sensitive with a decision being made in 28 days

Question 10

What enforces the requirement for a building contract to contain provisions for adjudication?

Answer 10

The Housing Grants, Construction and Regeneration Act 1996 (Construction Act)

Question 11

What if a building contract does not contain provisions for adjudication?

Answer 11

Parties still have the statutory right to adjudication assuming the contract qualifies under the construction act

Failing this, the Scheme for construction contracts will apply in its entirety

Question 12

What is arbitration?

Answer 12

Arbitration is a procedure for the resolution of disputes which is under the control of the parties

Certain conditions must be met, e.g. a genuine dispute or difference between the parties mist have occurred within an award being capable of enforcement

A binding agreement must be reached to escalate the matter to arbitration

The proceedings are undertaken in a private setting meaning the reputations of both parties can be preserved to an extent

Question 13

What is the difference between arbitration and litigation?

Answer 13

Arbitration =
- Governed by the Arbitration Act 1996
- In order to arbitrate there must be an agreement to enter into arbitration by both parties
- Parties have a wide degree of discretion as to how the 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 =
- 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

Question 14

What are the different levels of dispute resolutions?

Answer 14

Negotiation (no third party involvement)
Conciliation
Mediation
Adjudication (no court, but third party decision)
Arbitration (private court)
Litigation (public court)

Question 15

What is the timeline for adjudication?

Question 16

Which forms of resolution can be appealed?

Answer 16

Adjudication can
Arbitration and litigation cannot