Dispute Resolution Flashcards
What is dispute resolution?
Actions to resolve contractual disagreements between parties.
Name some different forms of ADR?
Mediation
Conciliation
Negotiation
What is Conciliation?
- Dispute resolution similar to mediation.
- Independent party to aid an agreement.
- Conciliator has no authority to seek evidence or call witnesses.
- Conciliators do not make decisions.
- Messenger – shuttle diplomacy
What is Mediation?
- ADR form of bringing in separate impartial third party to mediate and guide a decision which optimises the parties’ needs.
- Mediation encourages coming together and agreeing.
What is the different between mediation and conciliation?
- Mediation attempts to bring parties together and agree based on a careful approach which best suits both parties.
- Conciliation doesn’t try to being parties together and agrees through a third party acting as a broker.
What is negotiation?
Parties may through an informal private or facilitated negotiation process agree to settle the dispute either at a high level or in detail and agree to be bound by this settlement
What could indicate the success of a negotiation on a final account?
Both parties come away happy, costs agreed within cost report budgets.
What is adjudication?
- Relatively quick process from submission of referral
- Binding until dispute determined by litigation or arbitration
- Seen as simplified arbitration process.
Tell me about arbitration
- Arbitration is a procedure for the resolution of disputes which is under the control of the parties.
- Certain conditions must be met: a genuine dispute or difference between the parties (award must be capable of enforcement). Binding agreement to submit to arbitration in contract. Private.
- Three available procedures: Documents only (30 days), short hearing (30 days) and full procedure (long).
Why do Disputes arise?
- Uncertainty
- Contractual problems
- Human behaviour
What do you do to avoid Conflict?
- Check tender documents
o Ensure all technical docs required are included
o Which contract is to be used
o Which supplements / amendments apply
o Details for completion / insurance levels - Check contract documents
o Any purpose-written amendments are included
o Full and complete descriptions descriptions of the works – avoid making general statements and set out a complete list if documents included
o -ensure contract is also signed correctly
Name the main types of Dispute Resolution
- Litigation: - cases are heard in High Court, where parties are represented by solicitors. (Binding)
- Arbitration: - legal technique for the resolution of disputes outside the courts. Arbitration awards are enforceable at law. An arbitrator’s award can be subject to appeal on limited groups. (Binding)
- Adjudication: - a formal judgement on a disputed matter. Certain clause should be a part of the contract and certain body should be nominated in contract particulars (RIBA, RICS, CIArb). The adjudicator’s decision will be final and binding on the parties ‘until the dispute is finally determined by legal proceedings, by arbitration, or by agreement between parties. (Binding)
- Mediation: - appointed mediator meet with parties together and separately in an attempt to resolve the differences. The outcome is in a form of a recommendation. Tends to forge good relationships between involved parties. (Non-Binding)
- Negotiation: - seniors of a project meet, discuss and make an agreement. (Non-Binding)
What Rules / Ordinances apply to each for of Dispute Resolution?
- Negotiation: - contract, ethics, gentlemen agreement where both parties review each others’ claims and agreed on final figure.
- Mediation: - Hong Kong International Arbitration Centre Mediation Laws.
- Adjudication: - Hong Kong Security of Payment Legislation (SOPL)
- Arbitration: - Arbitration Ordinance (Cap 609)
- Litigation: - Civil Procedure Rules
What Clause in the Contract seal with disputes?
Clause 41
What is the difference between Litigation and Arbitration?
Arbitration: procedures governed by Arbitration Ordinance (Cap 609)
- In order to arbitrate there must be an agreement by both parties.
- Parties have a wide degree of discretion as to way proceedings conducted.
- Procedure similar to litigation with formal submission by parties, expert evidence, hearings and decision by arbitrator
Advantages are that it is a private process, parties have flexibility, arbitration awards generally easier to enforce
Litigation: Presentation of arguments in court.
- Public process following Civil Procedure Rules
Advantages: Parties do not pay for court or judge, process can deal with multi-party disputes, civil procedure rules aim for accessibility, speed and efficiency.
