Conflict Avoidance, Management and Dispute Resolution Flashcards
What is a conflict?
A disagreement between parties
What is ADR?
ADR stands for Alternative Dispute Resolution, which are alternative forms of dispute resolution which avoid litigation.
Which legislation introduced ADR?
It was introduced as part of the Civil Procedure Rules 1998.
What is Litigation?
Litigation is the process of taking legal action
What are the six forms of ADR?
Mediation Expert Determination Adjudication Arbitration Negotiation Conciliation
Which forms of ADR are adjudicative?
- Arbitration
- Adjudication
- Expert Determination
What are the benefits of ADR?
Cost saving
Time saving
Less adversarial
What does the term ‘without prejudice’ mean?
An action taken with prejudice is final. It is designed to prevent statements, made in a genuine attempt to settle an existing dispute, from being presented to a court or tribunal, as evidence in a subsequent case.
What is a Calderbank offer?
A settlement offer which is made “without prejudice save as to costs”. Established in Calderbank v Calderbank [1975]. It puts the other party on notice that, if the dispute goes before any court and the outcome is less favourable to the other side compared to the Calderbank Offer being made, then the side making the offer is entitled to more of their costs being recovered. This is because, if the other side had accepted the offer, then they would have been better off and neither side would have had to spend money taking the matter to court.
You may issue more than one Calderbank offer, but one should be served before litigation.
Talk me through how you would go about negotiating something?
- Firstly I would prepare, as understanding you points fully is critical
- Secondly I would pre-determine what I can afford to give away, know my bottom line
- Focus on the bigger picture, don’t get stuck on one item
- Try to agree factual matters first
- Try to negotiate a win/win situation
- Never accept the first offer
- Finally, I would negotiate the small deals before the big ones
What is the court system structure in the UK?
- Lower Tribunals
- Upper Tribunals
- Court of Appeal
- Supreme Court
Which Act regulates arbitration proceedings
Arbitration Act 1996
What are the key steps when preparing for negotiation
Identify what the issue is
Initial response to party
Negotiation/ meeting
What do you think about email communication?
They can be legally binding and used as evidence. Must therefore specify if sent without prejudice
What must a compliant complaints handling procedure include
The RICS provides a model form
Must respond within 28 days with the name and person dealing with the case ensuring the procedure is clear and transparent. May need to advise insurers if the claim could lead to liability.
