Dispute resolution

Question 1

What are the two main categories of dispute resolution?

Answer 1

Agreement between the parties

• Negotiation
• Mediation
• Conciliation

Decision made by others

• Expert Determination (Expert)
• Adjudication (Adjudicator)
• Arbitration (Arbitration Tribunal)
• Litigation (Court)

Question 2

Define Conciliation

Answer 2

‘Conciliation involves an independent conciliator who discusses the issues with both parties in order to help them reach a better understanding of each other’s position and underlying interests. Without taking sides, the conciliator tries to encourage the parties in a dispute to come to an agreement between themselves.’

The conciliator is more like an interventionist who provides probable solutions to the parties concerned, to settle disputes.

Question 3

Define Mediation

Answer 3

A flexible, voluntary and confidential form of alternative dispute resolution (ADR), in which a neutral third party assists parties to work towards a negotiated settlement of their dispute, with the parties retaining control of the decision whether or not to settle and on what terms.

The mediator acts as a facilitator who helps the parties in agreeing.

Question 4

What are the differences between mediation and conciliation?

Answer 4

Mediation
The mediator acts as a facilitator who helps the parties in agreeing.

Conciliation
The conciliator is more like an interventionist who provides probable solutions to the parties concerned, to settle disputes.

Question 5

Define Adjudication

Answer 5

Adjudication Is a contractual or statutory procedure for swift interim dispute resolution. It is provided by a third party adjudicator selected by the parties in dispute.

Adjudication has a strict timetable – 28 days - and may be based purely on documentary submissions. Adjudicators can adopt an
inquisitorial role in ascertaining facts and law.

Decisions are binding unless revised by arbitration or litigation. There is no right of appeal and limited right to resist enforcement.
Award of legal costs is at the discretion of the adjudicator unless this is excluded by the terms of the contract.

Question 6

Define Arbitration

Answer 6

Arbitration
Private, contractual form of dispute resolution. It provides for the determination of disputes by a third party arbitrator or
arbitration panel, selected by the parties to the dispute.

Disputes are resolved on the basis of material facts, documents and relevant principles of law.

Question 7

What are the differences between Adjudication and Arbitration?

Answer 7

Adjudication

• Third party adjudicator
• 28 days
• Contractual or statutory procedure
• Adjudicators can adopt an inquisitorial role which may involve taking the initiative in ascertaining facts and law
• Decisions are binding. No right to appeal
• Legal costs at Adjudicator discretion unless excluded by the contract.
• The Housing Grants, Construction and Regeneration Act imposes a right to adjudication in construction contracts.

Arbitration

• Third party arbitrator. A lawyer or expert in the field
• No time frame as set by the parties
• Private, contractual form
• Resolved on the basis of material facts, documents and relevant principles of law, rather than just listen to submissions
• Decision is known as an ‘award’ and legally binding. No right to appeal.
• Arbitrators have the power to order costs.

Question 8

Litigation – what is the name of the court where most/all construction disputes are held?

Answer 8

Technology and Construction Court

‘handles disputes about buildings, engineering and surveying.
Cases that we hear include:
• claims about services provided by engineers, architects, surveyors and other professionals in this sector
• claims about local authority duties relating to land and buildings
• environmental claims (eg pollution)
• claims resulting from fires
• challenges to decisions of arbitrators in construction and engineering disputes

We do not normally handle cases with a value of less than £250,000 unless there is a good reason, e.g. the case involves a new or difficult point of law or the case is international.’