Conflict Avoidance, Management and Dispute Resolution Procedures

Question 1

Some different forms of Alternative Dispute Resolution? (informal)

Answer 1

Mediation
Conciliation
Negotiation

Question 2

Some formal methods of dispute resolution?

Answer 2

Adjudication
Arbitration
Litigation

Question 3

Consideration prior to selecting a form of dispute resolution?

Answer 3

Cost
Timescales
Impact on relationships
Impact on reputation

Question 4

What is Conciliation?

Answer 4

Similar to mediation and relies on 3rd party who has no authority to make binding decisions or seek evidence but acts as messenger to encourage diplomacy

Question 5

What is Mediation?

Answer 5

Relies on 3rd party who has no authority but encourages parties to come together to facilitate a decision

Question 6

What is Dispute Resolution?

Answer 6

Actions taken to resolve contractual disagreements

Question 7

What is Negotiation?

Answer 7

Parties reach an agreement (informal or facilitated discussion) to settle the dispute (at high level or in detail) and agree to be bound by this

Question 8

Most successful negotiation?

Answer 8

Ref project
the issue
how prepared
items - non-negotiable/conceded/how decided
end outcome and how ensured positive for not just client but also wider team eg partnering/long term approach

Question 9

What is Adjudication?

Answer 9

Statutory form of dispute resolution
3rd party considers both sides of claim and makes a binding decision
within 28 days
appealed through Arbitration or Litigation

Question 10

Adjudication right in contract enforced by?

Answer 10

The HGCRA 1996 (Construction Act)

Question 11

Which contracts adjudication applies to?

Answer 11

All construction contracts entered into after Act commenced

Question 12

What if contract not have provision for adjudication?

Answer 12

Have right if qualifies Construction Act, otherwise the Scheme will apply

Question 13

Your understanding of Arbitration process?

Answer 13

Undertaken in private setting (reputations preserved)
Under the control of the parties - identify there is a genuine dispute and agree award enforceable
Binding agreement before undertaking process

Question 14

Difference between Arbitration and Litigation?

Answer 14

Arbitration:
Arbitration Act 1996
Agreement to enter process (private)
Parties’ control of how conducted
Formal submissions
Expert evidence
Hearings
Decision

litigation:
In court
Public process
Civil procedure rules
High costs
Can deal with multi-party disputes
Accessible, speed, efficiency