M7. CONFLICT AVOIDANCE, MANAGEMENT AND DISPUTE RESOLUTION PROCEDURES Flashcards
Name some different forms of Alternative Dispute Resolution?
- Negotiation
- Mediation
- Conciliation
- Adjudication
- Arbitration
Name some formal methods of dispute resolution?
- Arbitration.
- Litigation.
- Adjudication.
What would your considerations be prior to selecting a form of dispute resolution?
- The cost of dispute resolution in proportion to the claim being sought.
- The timescales involved.
- The impact on business relationships and reputation.
What is Conciliation?
- ADR process similar to mediation and relies on an independent third party to aid reaching an agreement.
- Conciliators make a non-binding recommendation if the parties fail to reach settlement.
What is Mediation?
- ADR that relies on bringing in an impartial third party to mediate and guide a decision.
- Parties participate voluntarily.
- Mediator has no authority to make a decision.
What is dispute resolution?
- Actions and processes taken to resolve contractual disagreements between parties.
What is negotiation?
- Negotiation is where the parties reach an agreement through an informal private or facilitated discussion.
- Both parties will 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 are satisfied with the outcome and feel that a fair and reasonable compromise was reached.
- Both parties feel as though their long-term relationships and reputations have been maintained.
What is adjudication?
- Adjudication is a statutory form of ADR available in the UK.
- It relies on an independent third party who considers the claims of both parties.
- A binding decision is made by the adjudicator which can be appealed either through litigation or arbitration.
- It is a relatively economical and efficient method of resolving disputes without engaging in lengthy and expensive court proceedings.
- It has the advantage of being time sensitive with a decision being made within 28 days.
What Act enforces the requirement for a building contract to contain provisions for adjudication?
- The Housing grants, Construction and Regeneration Act 1996 (Construction Act).
Which contracts does adjudication apply to?
- It applies to all construction contracts entered into after the act commenced within England, Scotland and Wales.
What if a building contract does not contain provisions for adjudication?
- Parties still have the statutory right to adjudication assuming the contract qualifies under the construction act.
- Failing this the Scheme for construction contracts will apply in its entirety.
Please explain your understanding of the arbitration process?
- Arbitration is a procedure for the resolution of disputes which is under the control of the parties.
- The proceedings are undertaken in a private setting meaning the reputations of both parties can be preserved to an extent.
Can you explain in detail the difference between arbitration and litigation procedures?
- Arbitration:-
o Arbitration is governed by the Arbitration Act 1996.
o In order to arbitrate there must be an agreement to enter into arbitration by both parties.
o Procedures are similar to litigation with formal submissions by both parties, expert evidence, hearings and a decision by the arbitrator.
o It is a private process. - Litigation:-
o Litigation differs in that proceedings are conducted in court.
o It is a public process that follows civil procedure rules.
o Despite having high costs the process can deal with multi-party disputes and civil procedure rules which aim for accessibility, speed and efficiency.
What is the timeline for an adjudication claim?
- Dispute must have crystallised
- Party issues Notice of Adjudication.
- Within 7 days, Adjudicator must be appointed.
- Following appointment (but within 7 days) referring party must issue referral notice.
- Adjudicator sets timeline, includes response from responding party (often 7 days).
- The adjudicator must make decision within 28 days (or extended up to 42 by mutual agreement).
Can you name some conflict avoidance processes?
- Good management
- Clear contract documentation
- Good payment practice
- Record keeping
What are the three pillars of dispute resolution?
- Negotiation– the problem-solving efforts of the parties themselves
- mediation – a non binding third-party facilitative intervention
- adjudicative process – a third-party imposes a binding decision
What is the TCC?
The Technology and Construction Court
What are the most common causes of disputes?
- Payment
- Poor contract documentation
- Unclear scope of services
- Conflicting specification and drawings
What if a building contract does not contain provisions for adjudication?
Adjudication is a statutory right of a party to a construction contract under the Construction Act.
