Conflict Avoidance Management And Dispute Resolution Flashcards
Different forms of Alternative dispute resolution
Mediation, conciliation, negotiation
Formal methods of dispute resolution
Arbitration, litigation, adjudication
What would you consider before selection of dispute resolution
The cost of the dispute resolution in proportion to the claim. Timescales. Impact on business relationships and reputation
What is dispute resolution
Actions and processes taken to resolve contractual disagreements between parties
What is negotiation
Where parties reach an agreement through an informal private or facilitated discussion.
Both parties will agree to settle the dispute at high level or in detail and agree to be bound by this settlement
Conciliation
Similar to mediation and relies on an independent third party to aid reaching an agreement.
Conciliator does not have authority to seek evidence
Conciliators cannot make binding decision
their role is to act primarily as messenger
Mediation
Brings an impartial third party to mediate and guide on decision
Mediators encourage the coming together of parties to facilitate decision rather than just acting as messenger like in conciliation.
Success factors of negotiation on a final account
Both parties are satisfied with the outcome and feel that fair and reasonable compromise reached
Both parties feel that their long term relationship and reputation have been maintained
What is adjudication
Statutory form of dispute resolution in Uk.
Simple and efficient method of resolving disputes without engaging in court proceedings
Relies on an independent third party who considers the claim of both parties.
Adjudication makes a binding decision which can be appealed through litigation or arbitration.
Advantages of being time sensitive decision has to be made in 28 days
Used for straightforward disputes. Adjudication decision can be overturned by arbitration or litigation
Requirement for adjudication provision in building contract
The housing grants, construction and regeneration act 1996
Which contract does adjudication apply to?
all construction constructs entered into after the housing grants and construction regeneration act in England Scotland and wales
If building contract doesn’t have adjudication ? Then what
The parties still have a statutory right to adjudication assuming the contract qualifies under the construction act.
Arbitration
Alternative to going into court. A neutral third party listens to both sides of the dispute and makes a binding decision.
Proceedings can be undertaken in a private setting to preserve reputation of both parties. So good for confidentiality
Useful for technical disputes
Quick resolution and can have virtual hearings
Arbitration
Governed by arbitration act 1996.
Procedures are similar to litigation with formal submissions by both parties, expert evidence, hearings and a decision by arbitrator.
Voluntary both parties must agree to participate. More flexible than litigation can decide when the hearings will take place.
Arbitrators ruling is final.
Litigation
Conducted in court. A public process that follows the civil procedure rules.
Despite having high costs the process can deal with multiparty disputes and civil procedure rules