Conflict avoidance, management and dispute resolution procedures L1 Flashcards
Name some different forms of Alternative Dispute Resolution?
- Mediation.
- Conciliation.
- Negotiation.
Name some formal methods of dispute resolution?
- Arbitration.
- Litigation.
- Adjudication
What would your considerations be prior to selecting a form of dispute
resolution?
- The cost of dispute resolution in proportion to the claim being sought.
- The timescales involved.
- The impact on business relationships and reputation.
What is Conciliation?
- This 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
What is Mediation?
- 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.
What is dispute resolution?
Actions and processes taken to resolve contractual disagreements between parties
What is negotiation?
- Negotiation is where the 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
this settlement.
What is your most successful negotiation?
Case Study - negotiating the sale of the site subject to the purchaser diverting the pipe.
What could indicate the success of a negotiation on a final account?
- Both parties are satisfied with the outcome and feel that a fair and reasonable compromise was reached.
- A partnering approach is adopted with both parties feeling as though their long-term relationships and
reputations have been maintained.
What is adjudication?
- Adjudication is a statutory form 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.
What enforces the requirement for a building contract to contain
provisions for adjudication?
- The Housing grants, Construction and Regeneration Act 1996 (Construction Act).
Which contracts does adjudication apply to?
- It applies to all construction contracts entered into after the act commenced within England, Scotland
and Wales.
What if a building contract does not contain provisions for
adjudication?
- 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.
Please explain your understanding of the arbitration process?
- Arbitration is a procedure for the resolution of disputes which is under the 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.
Can you explain in detail the difference between arbitration and
litigation procedures?
- Arbitration:-
o Arbitration is governed by the Arbitration Act 1996.
o In order to arbitrate there must be an agreement to enter into arbitration by both parties.
o Parties have a wide degree of discretion as to how the proceedings are conducted.
o Procedures are similar to litigation with formal submissions by both parties, expert evidence,
hearings and a decision by the arbitrator.
o It is a private process. - Litigation:-
o Litigation differs in that proceedings are conducted in court.
o It is a public process that follows civil procedure rules.
o Despite having high costs the process can deal with multi-party disputes and civil procedure
rules which aim for accessibility, speed and efficiency.
How Might You Avoid a Conflict Arising in The First Place?
- Clear Contractual Obligations
- Proactive Conflict avoidance Analysis
- Manging Expectations
- Keeping Good Records
What are the Three Main Processes Available to Solve Disputes?
- Negotiation (Parties involved working it out)
- Mediation / Reconciliation (Third party intervention that doesn’t bind parties to a decision but assists the resolution)
- Adjunctive Process: An Outcome is determined by a third party, such as litigation or arbitration.
What is Alternative Dispute Resolution (ADR)
Dispute resolution processes that fall outside the scope of the court, they are used because they are quicker and less costly, and the outcome may be better informed (decided by a surveyor not judge).
Can You Give Some Examples of ADR Mechanisms?
(1) Mediation (RICS Guidance Note on Mediation 2014) – A neutral mediator is used to facilitate discussion between two parties. Mediator has decision authority, and cannot impose an outcome.
(2) Arbitration An Arbitrator with specialist knowledge is appointed under the Arbitration Act 1996 by the parties or RICS President. Parties are bound by the decision. The Arbitrator Cannot be sued for Negligence as they only use information provided by the parties. Their decision can be overruled by the Court of Appeal. Surveyors have to pass to Chartered Institute of Arbitrators Exams.
(3) Independent Expert An independent witness is appointed by the two parties (or by the president of the RICS if the two parties are using the RICS Dispute Resolution Service). They will have expert knowledge on the subject matter. Both Parties are bound by the decision. There is an RICS Panel of Independent Experts.
What Exams do Surveyors Need to Pass to Become An Arbitrator?
They need to qualify and pass the Chartered Institute for Arbitrators Exams.
What Document Has the RICS Published on Independent Experts?
The RICS Guidance Note on Independent Expert Determination, 2016.
What Document Has the RICS Published on Surveyors Acting as Expert Witnesses? And what is important to consider when acting in such a way?
RICS Practice Statement (Mandatory) Surveyors Acting as Expert Witnesses (2014)
The primary duty of care is to the Court or other dispute resolution panel, not to the Client, even though the client pays your fee.
Incentive fees are therefore not appropriate for a surveyor acting as an expert witness.
What must an Expert Witness Provide Prior to Starting Their Role?
A Statement of Truth and confirmation that they will act impartially and objectively.
What is Hot-Tubbing in the context of Dispute Resolution?
When Expert Witnesses are sworn in alongside each other and able to ask each other questions.
