ADR Flashcards
(23 cards)
Why could a conflict arise?
- Failure to comply with contractual obligations
- Differing interpretations of the contract itself.
What is conflict avoidance?
How to avoid a conflict in the first instance or enable efficient resolution if it happens.
Name methods for conflict avoidance.
- Clear drafting of documentation
- Understanding all parties’ expectations and objectives
- Negotiating contractual obligations transparently
- Good records on file
What are the methods of conflict management?
- Negotiation
- Mediation
- Arbitration
- Independent Expert determination
- Professional Arbitration on Court Terms (PACT)
- Adjudicative process
What factors should be considered when resolving a dispute?
Cost, speed, confidentiality, the relationship.
What is an Alternative Dispute Resolution (ADR) method?
A process and technique that falls outside the scope of court and legal system.
What are the advantages of Alternative Dispute Resolution (ADR) processes?
- Speed
- Informality
- Greater opportunity to negotiate
- Cost
- Quality of decision
- Confidentiality
Name forms of Alternative Dispute Resolution (ADR).
- Mediation
- Arbitration
- Independent Expert Determination
- Professional Arbitration on Court Terms
What is mediation?
Use of neutral mediator to facilitate discussion between two parties.
What are the characteristics of mediation?
- Confidential and informal process
- Usually conducted without prejudice basis
- Mediator has no decision-making authority
What is Independent Expert Determination?
Appointed by the two parties, expert knowledge of the dispute subject, both parties bound by decision.
What are the key features of Independent Expert Determination?
- Speed
- Specialist knowledge
- Investigation of the dispute
- Use of own opinion or evidence
What is arbitration?
Appointed in a quasi-judicial role according to Arbitration Act 1996.
What are the characteristics of arbitration?
- Parties are bound by the decision
- Arbitrators can order a hearing or consider written representations
- Confidential solution
What is adjudication?
Commonly used in construction payment disputes.
What are the features of adjudication?
- Adjudicator uses own knowledge
- Legally binding decision
- Strict timescales (28 days adjudicator decides)
What is Professional Arbitration on Court Terms (PACT)?
A form of ADR for tenancy renewals under the Landlord and Tenant Act 1954.
What is an expert witness?
When a surveyor provides evidence to a judicial or quasi-judicial body.
What is the duty of care for an expert witness?
The court, not the client.
What must an expert witness provide?
A ‘Statement of Truth’ confirming impartiality.
What is ‘hot tubbing’?
Where experts consider cases collaboratively.
What is the role of a surveyor as an advocate?
Represents their client at a judicial hearing/tribunal.
What is the duty of a surveyor acting as an advocate?
To the instructing client, maintaining the integrity of the judicial process.
