Conflict Avoidance, Management and Dispute Resolution Procedures Flashcards
Name some different forms of Alternative Dispute Resolution
- Mediation
- Conciliation
- Negotiation
Name some formal methods of dispute resolution
- Arbitration
- Litigation
- Adjudication
What considerations should be taken into account before selecting a form of dispute resolution?
- The cost of dispute resolution in proportion to the claim being sought
- The timescales involved
- The impact on business relationships and reputation
What is Conciliation?
- A dispute resolution process similar to mediation
- Relies on an independent third party to aid reaching an agreement
- The conciliator does not seek evidence or call witnesses
- Conciliators cannot make binding decisions
- The role is primarily to act as a messenger and encourage diplomacy
What is Mediation?
- An alternative form of dispute resolution
- Involves an impartial third party to mediate and guide a decision
- Aims to encourage a coming together of parties
- Key differentiator: acts as a facilitator rather than just a messenger
What is dispute resolution?
Actions and processes taken to resolve contractual disagreements between parties
What is negotiation?
- A process where parties reach an agreement through informal private or facilitated discussion
- Both parties agree to settle the dispute and be bound by the settlement
What are indicators of a successful negotiation on a final account?
- Both parties are satisfied with the outcome
- A fair and reasonable compromise is reached
- A partnering approach is adopted
- Long-term relationships and reputations are maintained
What is adjudication?
- A statutory form of dispute resolution available in the United Kingdom
- A simple and efficient method to resolve disputes without lengthy court proceedings
- Relies on an independent third party to consider claims
- A binding decision is made, which can be appealed through litigation or arbitration
- Decision is made within 28 days
What enforces the requirement for a building contract to contain provisions for adjudication?
The Housing Grants, Construction and Regeneration Act 1996 (Construction Act)
To which contracts does adjudication apply?
All construction contracts entered into after the act commenced within England, Scotland, and Wales
What happens if a building contract does not contain provisions for adjudication?
- Parties still have the statutory right to adjudication if the contract qualifies under the Construction Act
- The Scheme for construction contracts will apply in its entirety
Please explain your understanding of the arbitration process
- A procedure for dispute resolution under the control of the parties
- A genuine dispute or difference must have occurred
- A binding agreement must be reached to escalate the matter to arbitration
- Proceedings are private, preserving reputations
Explain the difference between arbitration and litigation procedures
Arbitration:
* Governed by the Arbitration Act 1996
* Requires agreement to arbitrate by both parties
* Wide discretion on proceedings
* Similar to litigation with formal submissions, expert evidence, hearings, and a decision by the arbitrator
* Private process
Litigation:
* Conducted in court
* Public process following civil procedure rules
* Can handle multi-party disputes
* Aims for accessibility, speed, and efficiency despite high costs
How do you practice conflict avoidance?
- Clear, concise, careful drafting of the contract or lease
- Adopting proactive conflict avoidance, risk analysis
- Managing all parties expectations
- Negotiation contractual obligations carefully and transparently
- Keeping good records with sufficient detail can resolve conflicts before they escalate
What is conflict management?
The use of processes, tools and skills to find ways to manage disagreements and disputes
What is dispute resolution
- Resolution of a dispute between two or more parties
Can you give any examples of dispute resolution?
- Most basic form could be negotiation
- At the other end, litigation is the formal legal process that uses the civil legal system to resolve a dispute that adopts a set of rules applied by the courts
What is alternative dispute resolution?
These are dispute resolution processes and techniques that fall outside the scope of court litigation,
What are the advantages of alternative dispute resolution?
- Speed
- Informality
- Greater opportunity for negotiation
- Cost
- Quality of decision making
- Confidentiality
What statute are arbitrators governed by?
Arbitration Act 1996
What do you know about Arbitration proceedings?
- An arbitrator decides a dispute acting in accordance with statute (e.g. Arbitration Act 1996)
- An award is produced that binds the parties
- Arbitrator will have specialist knowledge of the subject area and can be appointed by the RICS Dispute Resolution Service (DRS)
- Proceedings dealt with via written representations, but arbitrator can order a hearing
- Arbitrators have the power to award costs
- Arbitrators cannot be sued for negligence but there are three grounds for appeal (jurisdiction, point of law or serious irregularity)
- Can be fast, cost effective and confidential solution to a dispute
What do you know about Independent Expert proceedings?
- Independent expert can be appointed by the agreement of the parties
- Determination is produced that binds the parties
- An independent expert will have specialist knowledge of the subject area
- Independent experts are under a duty to make their own investigations and they use their knowledge and experience to reach a decision but will often invite written representations from the parties
- Ability of independent experts to determine costs is determined by the contract with the parties
- Independent experts can be sued for negligence but it is extremely difficult to overturn a determination
PACT (Professional Arbitration on Court Terms)
- A form of ADR specific to business tenancy renewals under the LTA 1954
- Alternative to dispute resolution via the County Court
- Can be used before or after formal lease renewal court proceedings have been issued
- Joint initiative between RICS and the Law Society for the determination of disputed rent and/or non-rent terms by a property specialist (rather than a judge)
- Dispute resolver can act as an arbitrator or as an independent expert, as agreed between the parties
