Conflict Avoidance, management and dispute resolution Flashcards
What is ADR?
Alternative Dispute Resolution
What are the benefits of ADR?
Alternative to court
Cheaper, quicker, confidential, opportunity for negotiation
What is negotation?
This is a form of dispute resolution – probably the most common one. You can negotiate directly with someone you are in dispute with, or you can have someone negotiate for you, such as an adviser or solicitor.
Parties need clear and objective strategy
Always have authority to negotiate
Should have have relevant people involved with good communication.
What is the difference between conciliation and mediation?
A mediator - just facilitates discussion to reach agreement.
A conciliator - can offer an opinion for a solution/settlement
What is mediation / concilliation?
A confidential process between two or more parties attempt to reach an amicable agreement with the help of a third party (Voluntary process).
Informal process where agreement is recorded in writing, it could be enforced by courts, usually without prejudice.
What is Arbitration?
In arbitration an independent third party considers both sides in a dispute, and makes a decision that resolves the dispute.
The arbitrator is impartial.
In most cases the arbitrator’s decision is legally binding on both sides
Contract must have written agreement to arbitrate.
What is litigation?
Court action in technology and construction court in London
Can escalate any dispute except arbitration
Should encourage ADR first.
Pre-action protocol applies
Very costly and binding (unless appealed)
What is adjudication?
This involves an independent third party - the adjudicator - considering the claims of both sides and making a decision.
Both sides send in written details of their argument, with evidence.
The adjudicator then makes a decision based on this information.
The adjudicator is usually an expert in the subject matter in dispute.
What are the timescales of adjudication?
Decision made within 28 days of referral
Can be extended by 14 days by agreement of referral party
Max 42 day extension if both parties agree. Further extension by agreement.
Decision is binding unless parties go to court in litigation
Does not have the power to award costs unless parties grant power.
When can a party not go to adjudication?
Residential occupiers are not included in the act - unless written into contract
Other exclusions for drilling oil or gas nuclear
Straight to litigation if there is no contractual right
What can disputes arise from?
Miscommunication between a contractor and the client
When the work has not performed to the clients standard or request, a failure to pay for services may ensue.
Costs have gone over budget
What is the Construction Act?
Housing Grants, Construction and Regeneration Act 1998 as amended
Local Democracy, Economic Development and Construction Act 2011 (update right to include oral contracts and a ‘slip’ rule to correct clerical errors)
Provides model terms included in contracts
What are the aims of the construction act?
Increase clarity and certainty for payments
Introduce fairer payment terms
Make adjudication more accessible
HGCRA
Remove conditional payments (pay when paid)
Updates to notices - pay less notice
LDEC
Abolished requirement for a contract in writing
Slip rule to clerical errors
Suspending part of the works
What has the act introduced?
Abolished requirements for contracts in writing
Remove conditional payments
Updates to notices (payless)
What does JCT say for disputes?
Adjudication is expressly referenced in Articles of Agreement. Further references Arbitration and courts.
Procedural rules are set out in the scheme for construction contracts.
Either party can refer to adjudication
Parties can select Arbitration from the outset or court proceedings.
Most JCTs provide that parties should seek to resolve a dispute through mediation.
