3.613 Mediation And Reconciliation Flashcards
Nature of opinion (1)
A
The opinion should be well motivated in order to persuade the party against which the opinion goes.
Why is mediation similar to arbitration, and why not. (3)
A
Parties choose as alternative to court
B
No judgement and only works if parties want it to work.
C
There is a potential to fail leading to arbitration or litigation.
What is the concept of Mediation (3)
A
Similar to Arbitration in that 2 parties agree to settle any dispute outside the court.
B
Difference is that no judgment is hands down .
C
Therefore if the parties are not fully committed to agree with the findings of the Mediator, the process can collaps.
When does Mediation become Arbitration (1)
A
If any clause in the contract state that the findings of the mediation process is final and binding, then the mediation process is by definition Arbitration.
What concessions are required from both Parties
A
Any settlement will invariably require that either or both parties make concessions
B
The outcome is better than expensive litigation.
C
Might damage good will between the parties concerned.
D
If the mediator explained the finding well the patio might see that he has been backing a loosing house.
What are the positives related to Mediation, good will between Contractor and Client (1)
A
By settling without extensive and expensive litigation, there is a hint of good will at play.
Good will between Contractor and Sub Contractor (1)
A
Each depend on the other for future work
B
Contractor likes to work with person that is good at what he does
C
Subbie depends on Good quality Main Contractors for work.
Valuation and certification (6)
A
A form of mediation
B
Parties may choose to be bound by the decision.
C
The process is not arbitration because the 3rd party does not resolve the dispute.
D
He is actually appointed to prevent a dispute arising.
E
Principle Agent assumes this role every time he issues a certificate.
F
Usually appointed due to skill and could be held liable if he does not exercise his skill with diligence.
Mediation in terms of the JBCC:
What is ment in terms of Mediation when referring to clause 40.6 (3)
A
Where a dispute has been declared the parties to the JBCC agreement may attempt to resolve it by mediation.
B
The parties need to appoint a mediator within 15 working days of the declaration of the dispute.
C
If they fail to appoint in 15 days the dispute may be referred at once to Arbitration or Litigation.
What is recognised as the essential agreement then. (1)
A
The desire of both parties to make it work.
What happens post the appointment
Meet and agree the procedures.
The representation of the parties and the dates.
Usually the first meeting is by the
How Mediation is conducted in JBCC (4)
A
Document is not prescriptive
B
Allow the mediator to meet wit the parties either together or separate.
C
All meetings are confidential and any info may not be repeated to the other party.
D
The mediator is a diplomat who attempts to get each of the parties to see the others viewpoint.
1991 JBCC versus 2000 (2)
A
In 1991 version the mediator was called to give opinion
B
No requirement and should be hesitant to do so unless required by the parties to have as learned oppinion
Principle Agents Decision regarding disagreements (3)
A
The PBA stipulates that the PA shall on written request of either the employer or there contractor, give a decision on any disagreement within 10 working days.
B
This deception will become final and binding unless rejected in a like period.
C
If the desision is disputed or he fails to render it in the time frame the dispute is ripe for referral to mediation/ Arbitration or litigation.
Principle agents impartiality (2)
A
The PA is not an Arbitrator.
B
He should not need to call a hearing
