Conflict Avoidance, Management & Dispute Resolution Procedures

Question 1

Name some different forms of Alternative Dispute Resolution?

Answer 1

• Mediation.
• Conciliation.
• Negotiation.

Question 2

Name some formal methods of dispute resolution?

Answer 2

• Arbitration.
• Litigation.
• Adjudication.

Question 3

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

Answer 3

• The cost of dispute resolution in proportion to the claim being sought.
• The timescales involved.
• The impact on business relationships and reputation.

Question 4

What is Conciliation?

Answer 4

• This dispute resolution process is similar to mediation and relies on an independent third party to aid reaching an agreement.
• The conciliator has no authority to seek evidence or call witnesses.
• Conciliators are not able to make binding decisions.
• The conciliators’ role is to act primarily as the messenger and to encourage diplomacy.

Question 5

What is Mediation?

Answer 5

• This is an alternative form of dispute resolution and relies on bringing in an impartial third party to mediate and guide a decision.
• The mediator tries to encourage a coming together of parties in order to facilitate a decision as opposed to acting only as a messenger which is the key differentiator between mediation and conciliation.
• Mediation encourages the coming together of parties and reaching an agreement.

Question 6

What is dispute resolution?

Answer 6

Actions and processes taken to resolve contractual disagreements between parties.

Question 7

What is negotiation?

Answer 7

• 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 agree to be bound by this settlement.

Question 8

What is your most successful negotiation? *****

Answer 8

• This is a level 2 question and is dependent on the candidates own experience. ***
• As an example a response could be built around the following principles:
  o Reference the project you had negotiated on.
  o Explain what the dispute was in relation to.
  o Explain how you prepared for example did you hold a meeting with the client or your team internally before the main negotiation.
  o Explain the non-negotiable items and items that you conceded on and how these were decided.
  o Talk the assessors through the end out come and how did you ensure this was positive for not just the client but the project and wider team for example adoption of a partnering, long term approach.

Question 9

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

Answer 9

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

Question 10

What is adjudication?

Answer 10

• Adjudication is a statutory form of dispute resolution procedure available in the United Kingdom.
• It is a relatively simple and efficient method of resolving disputes without engaging in lengthy and expensive court proceedings.
• Adjudication relies on an independent third party who considers the claims of both parties.
• A binding decision is made by the adjudicator which can be appealed either through litigation or arbitration.
• It has the advantage of being time sensitive with a decision being made within 28 days.

Question 11

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

Answer 11

The Housing grants, Construction and Regeneration Act 1996 (Construction Act).

Question 12

Which contracts does adjudication apply to?

Answer 12

It applies to all construction contracts entered into after the act commenced within England, Scotland and Wales.

Question 13

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

Answer 13

• Parties still have the statutory right to adjudication assuming the contract qualifies under the construction act.
• Failing this the Scheme for construction contracts will apply in its entirety.

Question 14

Please explain your understanding of the arbitration process?

Answer 14

• Arbitration is a procedure for the resolution of disputes which is under the control of the parties.
• 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.
• A binding agreement must be reached to escalate the matter to arbitration.
• The proceedings are undertaken in a private setting meaning the reputations of both parties can be preserved to an extent.

Question 15

Can you explain in detail the difference between arbitration and litigation procedures?

Answer 15

Arbitration:-
o Arbitration is governed by the Arbitration Act 1996.
o In order to arbitrate there must be an agreement to enter into arbitration by both parties.
o Parties have a wide degree of discretion as to how the proceedings are conducted.
o Procedures are similar to litigation with formal submissions by both parties, expert evidence, hearings and a decision by the arbitrator.
o It is a private process.

Litigation:-
o Litigation differs in that proceedings are conducted in court.
o It is a public process that follows civil procedure rules.
o Despite having high costs the process can deal with multi-party disputes and civil procedure rules which aim for accessibility, speed and efficiency.