Conflict avoidance and dispute resolution

Question 1

Where can you find the dispute resolution process included within the NEC?

Answer 1

• Clause W1 and W2 set out how to deal with a dispute via adjudication
• Subcontract Data Pt1 defines what option has been chosen
• W1 is used where the HGRA does not apply

Question 2

Can you explain the difference between arbitration and litigation?

Answer 2

Arbitration:
- Governed by the Arbitration Act 1996
- There must be an agreement from both parties to enter arbitration
- It is a private process
Litigation:
- Differs as it is conducted in a court
- It is a public process that follows civil procedures

Question 3

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

Answer 3

The Housing Grants, Construction and Regeneration Act 1996

Question 4

Explain your understanding of the arbitration process?

Answer 4

• Arbitration is a procedure for the resolution of disputes under the control of the parties
• A binding agreement must be made to escalate the arbitration
• The proceedings are undertaken in a private setting

Question 5

What would indicate the success of a final account negotiation?

Answer 5

Both parties are satisfied with the outcome and feel that a fair and reasonable position was reached

Question 6

What is adjudication?

Answer 6

• Adjudication is a statutory form of dispute resolution in the UK
• It relies on an independent third party who considers the claims of both parties
• A binding decision is made which can be appealed either through litigation or arbitration
• A decision in made within 28 days

Question 7

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

Answer 7

• The cost of dispute resolution in proportion to the claim
• The timescales involved
• The impact on business relationships and reputation

Question 8

What is negotiation?

Answer 8

Negotiation is where the parties reach an agreement through informal private discussion

Question 9

What is conciliation?

Answer 9

• This process is similar to mediation and relies on an independent third party to aid reaching an agreement
• The conciliator is to act as the primary messenger and encourage diplomacy

Question 10

What is Mediation?

Answer 10

• This process involves an impartial third party to mediate and guide a decision
• The mediator encourages a coming together of parties to facilitate a decision