Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Construction Adjudication > Law, Practice and Procedure > Flashcards

Law, Practice and Procedure Flashcards

1
Q

What are the different global law systems?

A

The Common Law- USA and Most Commonwealth Countries
Civil Law- EU Countries , South America and China
Islamic Law

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

What are the characteristics of Common Law System?

A

Approach is adversarial: Parties contest with each other to establish their cases before a tribunal. Lawyers seek a “win” for their client

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

What are the characteristics of Civil Law?

A

Based on written laws organised into codes which are continuously updated. The role of the judge is to establish the facts and apply the provisions of the applicable codes

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

What are the main methods of Alternative Dispute Resolution?

A 
Negotiation
Mediation
Expert Determination
Dispute Boards
Adjudication
Arbitration
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

What are the advantages of ADR

A 
More Cooperative than Litigation
Less Competitive than Litigation
Less Escalation and ill will
Can Improve relationships
Parties must continue to interact
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

What are the advantages of Negotiation

A

Always available
Confidential
It is fast and usually cheaper than alternatives
It allows for preservation of relationships
Range of solutions available is unlimited
Parties have full control of the process and the outcome

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

What do Mediators do?

A

Clarify the factual background
Set out the matters in dispute (and common ground between parties)
Help the parties assess and communicate to each other what they need in order to arrive at a settlement that both can accept.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

What are the advantages of Mediation?

A

Flexibility and Speed
Consensus: the parties have a joint objective to settle
Continuity: Mediation suits situations where the parties wish to preserve their relationship
Control: The parties have ultimate control over the process
Confidentiality

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

What are the disadvantages of Mediation?

A

The fact that there may not be a successful outcome
The status of the document that are subsequently used in formal proceedings
The potential conflict if the mediator is then asked to become involved in a further ADR process

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

What is the EU directive on Mediation?

A

Directive encourages the use of mediation as a cost-effective and quick alternative to litigation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

What is Conciliation?

A

Like Mediation, but more formal

Conciliator is likely to have expert knowledge in the type of dispute they conciliate

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

What is Evaluative Mediation?

A

A form of Mediation that assists parties to reach a resolution by pointing out the weakness of their cases and even predicting the outcome if the case goes to court or tribunal.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

What are the types of Expert Involvement?

A 
Early Neutral Evaluation
Neutral Expert Fact-Finding
Mini Trials
Private Trials
Ombudsman
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

What are the benefits of Expert Determination?

A 
Confidential
Private Process
Impartial Process
Relatively Inexpensive
Flexible Process
Unless Parties provide otherwise the experts determination is final and binding
Non Judicial and non-adversarial 
Maintain relationships
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

What are the negative aspects of Expert Determination?

A

Parties cannot insist on the expert taking notice of the evidence and the finality precludes a review where there has been unfairness or simple error (safe for negligence)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

In what situation might Expert Determination be a useful method of ADR?

A

Where statutory Adjudication does not apply.

17
Q

What are the advantages of Adjudication?

A 
Private
Party Choices
Flexibility of Process
Cost Effective
Speedy (typically 28 days)
Temporarily binding decision
18
Q

What act requires all construction contracts to have an agreement to adjudicate

A

Housing, Grants, Construction and Regeneration Act 1996

19
Q

What is the timescale that adjudication should be completed in?

A

28 days

20
Q

What are the different types of Dispute Board

A

Dispute Avoidance Board
Dispute Review Board
Dispute Adjudication Board

21
Q

On what type of projects have Dispute Boards been used regularly on and from what year?

A

Heavy Engineering Projects (tunnels, airports, toll roads)

Since 1975

22
Q

What is Arbitration?

A

A consensual method of dispute resolution whereby a third party tribunal makes a final determination.

23
Q

What are the advantages of Arbitration

A
  1. Parties can Choose the Arbitral Tribunal
  2. Parties can decide on the procedure to be followed
  3. Parties can bring their own council or representatives
  4. The decision may be reached with less cost and complexity compared to litigation
  5. Process is guaranteed to provide a binding determination.
  6. Confidentiality can be maintained
  7. Awards are relatively easy to enforce against appeal
  8. Immunity from Suit for the tribunal
24
Q

What is Med-Arb?

A

A hybrid process that gives parties the opportunity to use mediation to reach settlement. If the mediation does not reach an agreement then the mediator converts into the role of an arbitrator and makes a binding decision.s

25
Q

What is Arb-Med?

A

A hybrid process where the parties start an arbitration and move into mediation mode for some of the issues which may be resolved by a negotiated settlement.

26
Q

What is litigation?

A

The “default” method of resolution if no other method has been nominated in the agreement between parties. Matters are resolved through the courts.

27
Q

What are the disadvantages of litigation?

A 
Can be time consuming
Costly
It is public
Can adversely affect relationships
Parties do not have control of proceedings
28
Q

What are the advantages of litigation?

A

Establishing a precedent- to avoid future litigation
Publicity- could pressure an opponent into settlement
Costs- could be lower for the winning party.

29
Q

What is “natural justice”?

A

The Bias Rule- A person may not be the judge in his own cause (or everyone is entitled to have their matter determined by an unbiased decision maker)
The Hearing Rule- That every party has the basic right to be heard
The Evidence Rule- that a decision must be based on evidence relevant to the issue.

Construction Adjudication (3 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions