Conflict avoidance, management and dispute resolution procedures Flashcards
What are the main forms of Alternative Dispute Resolution?
Mediation – This process involves a neutral third party who facilitates discussions between the disputing parties to help them reach a mutually acceptable agreement. The mediator does not impose a decision but instead guides the parties toward a resolution.
Conciliation – Similar to mediation, conciliation involves an independent third party who assists in resolving the dispute by encouraging dialogue and offering suggestions. However, unlike a mediator, a conciliator may take a more active role in proposing solutions.
Negotiation – This is an informal and voluntary method where the parties involved communicate directly with each other to resolve their dispute. Negotiation can be done privately or with the assistance of legal representatives and the outcome depends on mutual agreement.
What are the main formal methods of dispute resolution?
Arbitration – This is a private dispute resolution process where an independent arbitrator makes a binding decision based on the evidence and arguments presented by both parties. Arbitration is often used in commercial contracts as an alternative to court proceedings.
Litigation – This is the process of resolving disputes through the court system. It involves legal proceedings before a judge (and sometimes a jury), where each party presents its case and a legally binding judgment is issued. Litigation follows formal procedures and can be costly and time consuming.
Adjudication – This is a statutory dispute resolution process, particularly relevant to the construction industry. An independent adjudicator is appointed to review the claims of both parties and make a binding decision within a short timeframe, typically 28 days.
What factors should be considered before selecting a form of dispute resolution?
The cost involved – The expense of resolving a dispute should be proportionate to the value of the claim. Some methods such as litigation, can be significantly more expensive than alternative options like mediation or adjudication.
Time constraints – The timeframe in which a resolution is required may influence the choice of dispute resolution method. For instance, adjudication provides a decision within 28 days, whereas litigation can take months or even years.
Impact on business relationships and reputation – The approach taken to resolve a dispute can affect ongoing business relationships. Mediation and negotiation are more collaborative methods that encourage cooperation, whereas litigation and arbitration can be adversarial and potentially damage relationships.
What is conciliation?
Conciliation – Similar to mediation, conciliation involves an independent third party who assists in resolving the dispute by encouraging dialogue and offering suggestions. However, unlike a mediator, a conciliator may take a more active role in proposing solutions.
What is mediation?
Mediation – This process involves a neutral third party who facilitates discussions between the disputing parties to help them reach a mutually acceptable agreement. The mediator does not impose a decision but instead guides the parties toward a resolution.
What is dispute resolution?
Dispute resolution refers to the various methods and processes used to resolve disagreements between parties, particularly in contractual or legal disputes. These methods can range from informal negotiations to formal legal proceedings, with the goal of finding a fair and effective solution to the dispute.
What is negotiation?
Negotiation is a process in which two or more parties communicate directly, either privately or with the assistance of representatives, to reach a mutually acceptable resolution. It is an informal method of dispute resolution that allows the parties to discuss their concerns, make concessions where necessary and agree on a settlement. Once an agreement is reached, both parties are typically bound by the terms they have negotiated.
What is your most successful negotiation?
At Old Mill, Old Malden Lane I negotiated on behalf of my client with the utility contractor delivering the onsite electrical networks.
