Conflict avoidance, management and dispute resolution Flashcards
What is Alternative Dispute Resolution?
Dispute resolution processes and techniques that fall outside the scope of court litigation
What are the advantages of ADR?
Advantages include:
Speed - less length than court proceedings
Informal - outside Court
Greater opportunity for negotiation
Cost - less money spent on professional fees for litigation
Quality of decision making - outcome can be made by surveyor rather than judge
Confidentiality
What are the processes of dispute resolution?
NEGOTIATION - problem-solving efforts of the parties themselves
MEDIATION - also known as councilation, a third party intervention but it is not binding, just assists parties in reaching a decision
EXPERT WITNESS
ADJUDICATIVE PROCESS - outcome determined by third party EG litigation or arbitration
OMBUDSMAN - organisation to confidentially receive investigation and facilitate a resolution to a compliant.
What is a mediator?
Use of a neutral mediator who facilitates discussions between two parteis to explore whether a solution can be found
Confidential and informal process
Mediation usually conducted on ‘without prejudice’ basis
Mediator has no decision-making authority and cannot impose resolution upon parties
What is your understanding on Arbitration?
Arbitrator is appointed in accordance with Arbitration Act 1996.
Parties are bound by the decision
Arbitrators can order a hearing or consider written representations
They have knowledge of subject area and cannot be sued for negligence, but Court can overrule on a point of law
Offers fast, cost effective and confidential solution to a dispute
What is your understanding on Independent Expert?
The expert has expert knowledge of subject matter of dispute
Both parties are bound by the decision
Receive evidence from both parties, and can use own opinion or evidence to decide upon determination
Quick and specialist knowledge on solution
What is the main difference between a mediator, independent expert and arbitrator?
Mediator isn’t legal binding
Independent expert / arbitrator - they are legally binding
How can you avoid conflict?
Need clear, concise and careful drafting of a contract
Negotiate contractual obligations carefully and transparency
Keep good records with sufficient level of detail to help resolve conflict before escalate.
What is early neutral evaluation?
Use of independent person, experienced in subject matter of dispute, to investigate and give their non-binding opinion
What is PACT
PACT is a process where the determination of all or some of the terms of a renewal lease is (with the consent of both parties) ‘delegated’ to an independent third party.
Why use PACT?
PACT offers a quick, efficient and cost-effective solution to your commercial lease renewal dispute without the need to go to court.
