Conflict Avoidance, Management and Dispute Resolution Flashcards
Why do conflicts arise (dispute)?
Failure to comply with contractual obligation / arrangement i.e. lease
What is the hierarchy of conflict avoidance?
- Avoidance (try to avoid / reduce likelihood from the outset)
- Management
- Resolution
How do you avoid conflict (dispute) from the outset of an instruction?
- Proactive - what could go wrong?
- Clear communication
- Transparent negotiations
- Keep records with sufficient levels of detail
What are the 3 main processes in resolving disputes?
- Negotiation (parties resolve themselves)
- Mediation or conciliation (3rd party intervention - does not bind parties to decision)
- Adjudicative process (Outcome determined by 3rd party - litigation, arbitration)
What are the benefits of alternative dispute resolution (outside scope of court litigation)?
- speed (less time consuming)
- Informality (outside of court)
- Greater opportunity for negotiation
- Cost’s less as no professional fees for litigation
What is litigation?
Process of taking legal action.
What are forms of ADR?
Arbitration, mediation
What is ADR?
Alternative Dispute Resolution
(settling complaint out of court with the assistance of an impartial dispute resolution body)
What are the forms of ADR?
- Mediation
- Arbitration
- Conciliation
What is dispute resolution?
Actions to resolve contractual disagreements between parties.
What are the three formal forms of dispute resolution?
Arbitration
Litigation
Adjudication
What would you consider to select a form of dispute resolution?
- The cost in proportion to the claim
- The timescales involved
- The impact on business relationships and reputation
What is mediation?
When a mediator (separate impartial 3rd party) is brought into facilitate discussions between the 2 parties
Mediation encourages coming together and agreeing.
It is non binding and parties can revert to arbitration or
litigation at any time.
What are the benefits of proceeding via Mediation?
- Confidential
- Informal process
Is the mediator able to make any decisions?
No and they cannot impose a resolution on 2 parties.
What is arbitration?
Procedure for the resolution of disputes under the control of the parties
Arbitration is a procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision on the dispute.
What is the process of arbitration?
Arbitrators can order a hearing or consider written representations.
The arbitrators deliberate the facts of the case provide a written decision called an award.
What is PACT?
Professional Arbitration on Court Terms (PACT)
- scheme offered by RICS and the Law Society as a form of
alternative dispute resolution (ADR) for lease renewal disputes. - quick, efficient and cost effective solution.
What is the benefit of arbitration?
- Fast
- Cost effective
- Confidential solution
Can a arbitrator be sued for negligence?
No
Who is an arbitrator?
- The arbitrator plays the role of a neutral person
- Has specialist knowledge of subject area
- Surveyors can act if they have passed Chartered Institute of Arbitrators exams
What is conciliation?
An Independent 3rd party is brought in to provide advice and possible solutions for parties to consider.
Dispute resolution similar to mediation.
What is the key difference between mediation and conciliation?
Mediation - Help facilitate the discussion and help parties to work out a solution that is mutually agreeable.
Conciliation - conciliator is usually a figure of authority that the parties have turned to for guidance. They provide advice and possible solutions for parties to consider and make final decision.
What is negotiation?
Negotiation is a dialogue between two or more parties to resolve points of difference and agree to settle the dispute.
