Conflict avoidance, mangement and dispute resolution procedures

Question 1

Name some different forms of Alternative Dispute Resolution?

Answer 1

• Mediation
• Conciliation
• Negotiation

Question 2

Name some formal methods of dispute resolution?

Answer 2

• Arbitration
• Litigation
• Adjudication

Question 3

What would your considerations be prior to selecting a form of dispute resolution?

Answer 3

• the cost of dispute resolution to the claim being sought
• the timescales involved
• the impact on business relationships and reputation

Question 4

What is Conciliation?

Answer 4

• The dispute resolution process is similar to mediation and relies on an independent third party to aid reaching an agreement
• The conciliator has no authority to seek evidence or call witnesses
• Conciliators are not able to make binding decisions
• The conciliators role is to act primarily as the messenger and to encourage diplomacy

Question 5

What is mediation?

Answer 5

• This is an alternative form of dispute resolution and relies on bringing in an impartial third party to mediate and guide a decision
• The mediator tries to encourage a coming together of parties in order to facilitate a decision as opposed to acting only as a messenger which is the key differentiator between mediation and conciliation
• Mediation encourages the coming together of parties and reaching an agreement

Question 6

What is dispute resolution?

Answer 6

Actions and processes taken to resolve contractual disagreements between parties

Question 7

What is negotiation?

Answer 7

• Negotiation is where 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 the settlement

Question 8

What is adjudication?

Answer 8

• Adjudication is a statutory for of dispute resolution procedure available in the united kingdom.
• It is a relatively simple and efficient method of resolving disputes without engaging in lengthy and expensive court proceedings
• Adjudication 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 has the advantage of being time sensitive with a decision being made within 28 days

Question 9

What enforces the requirement for a building contract to contain provisions for adjudication?

Answer 9

• The Housing grants, construction and Regeneration Act 1996 (Construction Act)
• The addendum to the construction act (The local democracy economic development and construction act 2009)

Question 10

Which contracts does adjudication apply to?

Answer 10

It applies to all construction contracts entered into after the act commenced within England, Scotland and Wales.

Question 11

What if a building contract does not contain provisions for adjudication?

Answer 11

• 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.

Question 12

Please explain your understanding of the arbitration process?

Answer 12

• Arbitration is a procedure for the resolution of disputes which is under control of the parties.
• Certain conditions must be met for example a genuine dispute or difference between the parties must have occurred with an award being capable of enforcement
• A binding agreement must be reached to escalate the matter to arbitration
• the proceedings are undertaken in a private setting meaning the reputations of both parties can be preserved to an extent.