Conflict Avoidance, Management & Dispute Resolution L1

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

Adjudication

Litigation

Question 3

WHAT IS MEDIATION?

Answer 3

An Alternative Dispute Resolution, often cheaper, more flexible, faster and avoids court.

Mediation is a voluntary and confidential form of ADR, when an impartial and neutral mediator facilitates communication between disputing parties to reach a settlement.

The mediator does not have authority to issue formal orders, but creates a conductive environment for resolution.

Question 4

WHAT IS CONCILIATION?

Answer 4

An Alternative Dispute Resolution, often cheaper, more flexible, faster and avoids court.

Similar to mediation, relying on an independent third party to aid reaching an agreement, however can give advice as a domain expert.

Conciliator has no authority to call evidence or witnesses, or be able to make binding decisions.

Question 5

WHAT IS NEGOTIATION?

Answer 5

An Alternative Dispute Resolution, often cheaper, more flexible, faster and avoids court.

Involves only the parties, unlike mediation with assistance from a third party.

Question 6

NAME ADVANTAGES OF ALTERNATIVE DISPUTE RESOLUTION

Answer 6

Mediation, conciliation, negotiation…

• Cost-efficient
• Time-effective
• Increase control of outcome
• Preserve relationship and company reputation
• Improved communication

Question 7

NAME DISADVANTAGES OF ALTERNATIVE DISPUTE RESOLUTION

Answer 7

Mediation, conciliation, negotiation…

• Not legally binding, third party has no authoritative power
• Resolution is not guaranteed
• An ineffective third party can hinder a resolution
• Information may be ‘given away’ in the process

Question 8

WHAT WOULD YOUR CONSIDERATIONS BE PRIOR TO SELECTING A FORM OF DISPUTE RESOLUTION?

Answer 8

The cost of dispute resolution in comparison to the claim being sought.

The timescales involved.

The impact on business relationships and reputation.

Question 9

WHAT IS DISPUTE RESOLUTION?

Answer 9

Actions and processes undertaken to resolve contractual disagreements between parties.

Question 10

WHAT IS NEGOTIATION?

Answer 10

Where parties reach an agreement through an informal discussion.

Both parties will agree to settle the dispute, either at high level or in detail, and agree to be bound by the settlement.

Question 11

WHAT IS YOUR MOST SUCCESSFUL NEGOTIATION?

Answer 11

Level 2 Question..

Basement Smoke Extract

Works found to be noted in original specification via British Standards, Contractor did not design correct sprinkler system amendments or account for it within their pricing.

I prepared by confirming their oversight against the BS, negotiated on behalf of the Landlord.

Agreed for Landlord to cover £15k cost as no contingency had been used to ensure timely completion of works. Contractor took £30k costs due to the oversight with no additional on-costs incurred by the Landlord.

Question 12

WHAT COULD INDICATE THE SUCCESS OF A NEGOTIATION ON A FINAL ACCOUNT?

Answer 12

Both parties satisfied with the outcome, feel a fair and reasonable compromise was reached.

Partnering approach adopted with the long term relationship and reputation of both parties maintained.

Question 13

WHAT IS ADJUDICATION?

Answer 13

Statutory form of dispute resolution.

Relatively simple and efficient method without engaging in lengthy and expensive court proceedings.

Independent third party considers claims of both parties, providing a binding decision which can be appealed through arbitration or litigation.

Time sensitive - Decision is to be made within 28 days.

Question 14

WHAT ENFORCES THE REQUIREMENT FOR A BUILDING CONTRACT TO CONTAIN PROVISIONS FOR ADJUDICATION?

Answer 14

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

Question 15

WHAT IS A BUILDING CONTRACT DOES OT CONTAIN PROVISIONS FOR ADJUDICATION?

Answer 15

Parties still have the statutory right to adjudication assuming the construction contract qualifies under the Construction Act 1996.

Failing this the Scheme for construction contracts will apply in its entirety.

Question 16

WHAT IS THE SCHEME FOR CONSTRUCTION CONTRACTS?

Answer 16

Part I of the Scheme provides a fall-back provision where a construction contract does not include all the adjudication provisions under Section 108 of the Construction Act. The Scheme replaces any such provisions within the Contract.

Part II provides terms for payment practice that supplement or replace those in the Contract which fail to comply with the Construction Act, only the failing provisions are to be supplemented or replaced.

The intention of the Construction Act is to make mandatory the use of fair payment practices in Construction Contracts.

Question 17

PLEASE EXPLAIN YOUR UNDERSTANDING OF THE ARBITRATION PROCESS?

Answer 17

Arbitration is a procedure in which a dispute is submitted to an Arbitrator, who makes a binding decision on the dispute.

Both parties must agree to arbitration, and unlike mediation, a party cannot withdraw from arbitration.

The arbitration process and award is confidential.

Generally quicker and cheaper than court, however, the decision can be appealed for lawful reason, then taking the dispute to the courts.

Question 18

PLEASE EXPLAIN IN DETAIL THE DIFFERENCE BETWEEN THE ARBITRATION AND LITIGATION PROCEDURES?

Answer 18

Arbitration, governed by the Arbitration Act 1996, is a private proceeding occurring when all disputing parties agree to enter the process. The parties have discretion over how the proceedings are conducted. Similar to litigation, the process includes formal submission of evidence, expert evidence and hearings, finalised by a binding decision by the arbitrator.

Litigation differs in that it proceedings are conducted in court, allowing public access following civil procedure rules. Despite having high costs, the process can deal with multi-party disputes and civil procedures which aim for accessibility, speed and efficiency.