Dispute Resolution

Question 1

What are the common methods of Dispute Resolution?

Answer 1

• Negotiation
• Non-binding decision of third party
• Mediation
• Arbitration
• Litigation

Question 2

What is the role of Consultant?

Answer 2

• Interpreter in first instance of contact
• Makes findings regarding performance under contract
• Must be consistent with intent of contract
• Can show no partiality

Question 3

What is the Consultant’s role in regards to both parties?

Answer 3

• Either party can refer question, cliam , or dispute to Consultant
• Notices in writing
• Consultant provides written finding/decision
• Either party can disagree within 15 days

Question 4

What is Negotiation?

Answer 4

• A process where two parties in a dispute reach a settlement b/w themselves that they agree on
• Negotiations are reached b/w parties without involvement of third party
• Can be with or without lawyers
• Do risk/cost/benefit analysis
• “without prejudice” meetings

Question 5

What are the advantages of Negotiation?

Answer 5

• control over process
• control over result - non-binding
• cheap
• quick

Question 6

What are the Disadvantages of Negotiation?

Answer 6

• Voluntary - can’t force participation

- No neutral third party

Question 7

What is a Non-Binding Third Party Decision?

Answer 7

• person with expertise

- referee (MMCD)

Question 8

What is Mediation?

Answer 8

• A facilitated negotiation

Mediator:

• facilitates communication fairly
• does not take sides
• does not act as judge or arbitrator
• Assists by clarifying issues and helping parties understand the other’s interests
• Will not impose solution

Question 9

What are the advantages of Mediation?

Answer 9

• high chance of success
• cheap and quick
• control over result

Question 10

What are the disadvantages to Mediation?

Answer 10

• non-binding
• adds to expense if unsuccessful
• can expose weakness

Question 11

What is Arbitration?

Answer 11

• Process where the decision is made by a third party
• parties select judge
• binding, private, court-like
• limited ability to appeal
• Arbitrator arranges a meeting and then holds a hearing with evidence presented
• Arbitrator issues a binding decision

Question 12

What are the advantages of Arbitration?

Answer 12

• Cheap and quicker for simple cases
• Can select an expert judge
• private
• full costs recoverable
• binding decision

Question 13

What are the disadvantages of Arbitration?

Answer 13

• As long as a trial
• Arbitrator’s fees
• third parties cannot be added
• limited appeal
• “cutting the baby in half”
• more risk of ambush

Question 14

What is Litigation?

Answer 14

• Judge, not jury, in Canada
• adversarial system
• settlement
• formal rules of Court
• defence costs of engineers sued

Question 15

What are the advantages of Litigation?

Answer 15

• only option to enforce rights
• can add third parties
• judge is free and legally trained
• public
• no trial ambush
• broad rights of appeal

Question 16

What are the disadvantages of Litigation?

Answer 16

• public and sets precedent
• cannot select your judge - no technical expertise
• cost, including soft costs
• time, including appeal time
• litigation risk
• harms relationships

Question 17

What are the Litigation Steps?

Answer 17

• Pleadings
• Discovery - documents and examinations
• Pre-trial Disposition
• Trial
• Appeal
• Costs