Conflict Avoidance, Management, and Dispute Resolution Procedures

Question 1

Name some different forms of Alternative Dispute Resolution.

Answer 1

1 - Mediation
2 - Conciliation
3 - Negotiation

Question 2

Name some formal methods of dispute resolution.

Answer 2

1 - Arbitration
2 - Litigation
3 - Adjudication

Question 3

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

Answer 3

1 - The cost of dispute resolution in proportion to the claim being sought.
2 - Timescales involved.
3 - The impact on business relationships and reputation.

Question 4

What is Conciliation?

Answer 4

1 - A dispute resolution process similar to mediation and relies on an independent 3rd party to mediate and guide a decision.
2 - The Conciliator has no authority to seek evidence or call witnesses.
3 - Conciliators are not able to make binding decisions.
4 - The conciliators role is to primarily act as the messenger and to encourage diplomacy.

Question 5

What is Mediation?

Answer 5

1 - An alternative form of dispute resolution, and relies on an impartial 3rd party to mediate and guide a decision.
2 - The mediator tries to encourage 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.
3 - Mediation encourages the coming together of parties and reaching an agreement.

Question 6

What is negotiation?

Answer 6

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 be bound by the settlement.

Question 7

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

Answer 7

1 - Both parties are satisfied with the outcome and feel that a fair and reasonable compromise was reached.
2 - A partnering approach is adopted with both parties feeling as though their long term relationships and reputations have been maintained.

Question 8

What is adjudication?

Answer 8

1 - A statutory form of dispute resolution procedure available in the UK.
2 - A relatively simple and efficient method of resolving disputes without engaging in lengthy and expensive court proceedings.
3 - Relies on an independent 3rd party who considers the claims of both parties.
4 - A binding decision will be made by the adjudicator which can be appealed, either through litigation or arbitration.
5 - It has the advantage of being time sensitive, with a decision being made in 28 days.

Question 9

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

Answer 9

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

Question 10

Which contracts do adjudication apply to?

Answer 10

All construction contracts entered into within England, Scotland and Wales

Question 11

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

Answer 11

1 - Parties still have the statutory right to adjudication, assuming the contract qualifies under the Construction Act.
2 - Failing this, the Scheme for Construction Contracts will apply in its entirety.

Question 12

Explain your understanding of the arbitration process.

Answer 12

1 - A procedure for the resolution of disputes which is under the control of the parties.
2 - 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.
3 - A binding agreement must be made to escalate the matter to arbitration.
4 - Proceedings are undertaken in private setting, meaning the reputations of both parties can be preserved to an extent.

Question 13

Explain the difference between arbitration and litigation procedures

Answer 13

Arbitration
1 - Governed by the Arbitration Act 1996
2 - In order to arbitrate, there must be agreement by both parties
3 - Parties have a wider degree of discretion as to how proceedings are conducted.
4 - Procedures are similar to litigation with formal submissions by both parties, expert evidence, hearings, and a decision by the arbitrator.
5 - A private process
Litigation
1 - Differs in that proceedings are conducted in court.
2 - Public process that follows civil procedure rules.
3 - Despite having high costs, the process can deal with multi-party disputes and civil procedure rules which aim for accessibility, speed and efficiency.