CONFLICT AVOIDANCE, MANAGEMENT AND DISPUTE RESOLUTION PROCEDURES

Question 1

Name some different 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 would your considerations be prior to selecting a form of dispute resolution?

Answer 3

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

Question 4

What is Conciliation?

Answer 4

• This dispute resolution process is 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 diplomacy.

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 differentiator 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 this 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

• Adjudication is a statutory form of dispute resolution procedure available in the United Kingdom.
• It is a relatively simple and efficient method of resolving disputes without engaging 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 within 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

Which contracts does adjudication apply to?

Answer 11

• It applies to all construction contracts entered into after the act commenced within England, Scotland and Wales.

Question 12

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

Answer 12

• 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 13

Please explain your understanding of the arbitration process?

Answer 13

• Arbitration is a procedure for the resolution of disputes which is under the control of the parties.
• Certain conditions must be met for example a genuine dispute or difference between the parties must have occurred with 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 14

Can you explain in detail the difference between arbitration and litigation procedures?

Answer 14

• Arbitration:-
  o Arbitration is governed by the Arbitration Act 1996.
  o In order to arbitrate there must be an agreement to enter into arbitration by both parties.
  o Parties have a wide degree of discretion as to how the proceedings are conducted.
  o Procedures are similar to litigation with formal submissions by both parties, expert evidence, hearings and a decision by the arbitrator.
  o It is a private process.
• Litigation:-
  o Litigation differs in that proceedings are conducted in court.
  o It is a public process that follows civil procedure rules.
  o Despite having high costs the process can deal with multi-party disputes and civil procedure rules which aim for accessibility, speed and efficiency.