Conflict Avoidance, Management & Dispute Resolution Procedures Flashcards
What is a conflict?
A disagreement between two or more parties.
How can you avoid a conflict in the first instance?
- Clearly stating requirements in tender and contract documentation.
- Ensuring good communication.
- Ensuring records are kept and documented.
- Ensuring guidance notes and professional standards are followed.
What is ADR?
Alternative Dispute Resolution – provides an alternative to traditional binding procedures such as arbitration and litigation. It includes:
Negotiation – where parties work out between themselves how to resolve issues (not legally binding)
Mediation – where parties bring in a neutral third-party to facilitate discussions (not legally binding)
Adjudication
What is the difference between Mediation and Conciliation?
In mediation, the mediator facilitates the reaching of an agreement. In conciliation, the conciliator plays a more direct role, helping find solutions and providing advice.
What is adjudication?
A method of resolving disputes quickly and cost effectively, an alternative to a more formal dispute resolution procedure.
Describe the adjudication process?
- Either party can serve a notice of referring a dispute to adjudication
- Within 7 days of the initial notice, the referring party must service the other party with a Referral, outlining their case. If not the adjudication will void.
- Within the same 7 day period, the referring party must secure an adjudicator, either the named person in the contract or the named body.
- The adjudicator must make a decision within 28 days of the referral.
- This time can be extended to 42 days by mutual agreement of both parties.
Is adjudication binding?
Yes – unless the adjudicator works outside of their jurisdiction or is seen to be biased.
What are the advantages and disadvantages of adjudication?
Advantages – quick, cheaper than arbitration or litigation and private.
Disadvantages – it’s not as necessarily cheap as a negotiation or mediation.
A Client wants to omit the right to adjudication from the JCT contract? What would be your advice?
I would advise that Adjudication is a legal right under the Construction Act 1996. If the contract does not comply with the Act, a provision is still made under the Scheme for Construction Contracts Regulations.
What is arbitration?
A lawsuit without court involvement. Parties submit their dispute to an arbitrator who will issue a decision to each parties’ rights and obligations.
What are the advantages and disadvantages of arbitration?
Advantages – private, legally binding and quicker than litigation
Disadvantages – very costly, limited appeal rights, can be uneconomical if the amount of money disputed against is modest.
What is litigation?
A claim brought to a civil court.
What are the advantages and disadvantages of litigation?
Advantages – compelled by the strict timeframes provided by a judge, there are defined rights of appeal.
Disadvantages – great costs, not private, takes a long time and is subject to appeal.
What are the two types of mediation?
Facilitative - a meditator attempts to facilitate negotiations so parties reach their own decision.
Evaluative - a meditator will make recommendations, suggestions and express opinions to help parties reach a decision.
What is expert determination?
Where differences between parties are submitted to one or more experts who determine the outcome.
