Conflict avoidance management and dispute resolution procedures Flashcards
What are the different forms of alternative dispute resolution?
Mediation, Conciliation, Negotiation
Mediation involves an impartial third party guiding a decision, while conciliation acts mainly as a messenger. Negotiation is an informal discussion to reach an agreement.
What is mediation?
A process involving an impartial third party to facilitate a decision between parties
The mediator encourages a coming together of parties to reach an agreement.
What differentiates mediation from conciliation?
Mediation encourages parties to agree, while conciliation acts mainly as a messenger
Conciliators do not seek evidence or call witnesses and cannot make binding decisions.
What is conciliation?
A process similar to mediation where an independent third party aids in reaching an agreement. The conciliator has no authority to seek evidence or call a witness and they cannot make binding decisions
Conciliators encourage diplomacy but do not have authority to make binding decisions.
What is negotiation?
An informal private or facilitated discussion where parties reach an agreement
Both parties must agree to be bound by the settlement.
What are the formal methods of dispute resolution?
Arbitration, Litigation, Adjudication
Each method has distinct procedures and implications for the parties involved.
What is arbitration?
A procedure for dispute resolution under the control of the parties. It is governed by the Arbitration Act 1996. It is a private proves, but procedures are similar to litigation with formal submissions by both parties, expert evidence, hearings, and a decision by the artibtrator
Governed by the Arbitration Act 1996 and requires a binding agreement to escalate matters.
What conditions must be met for arbitration?
A general dispute must have occurred, and an award must be capable of enforcement
Both parties must agree to enter into arbitration.
What is the setting of arbitration?
Conducted in a private setting
This helps preserve the reputation of both parties.
How does litigation differ from arbitration?
Litigation is conducted in court and is a public process
It follows civil procedure rules and can address multi-party disputes.
What is adjudication?
A statutory form of dispute resolution that is simple and efficient
It involves an independent third party making a binding decision, which can be appealed.
What is a key benefit of adjudication?
It is a statutory form of dispute resolution, relying on an independent third party who considers the claims of both parties.
A binding decision is made by the adjudicator which can be appealed through either litigation or arbitration.
Time-sensitive decisions are made within 28 days
This allows for a quicker resolution compared to other methods.
What considerations should be made prior to selecting a form of dispute resolution?
Cost, timescales, impact on business relationships and reputation
Each factor can significantly influence the choice of resolution method.
What is the dispute resolution procedure in rent reviews?
Typically, it will be arbitration or independent expert.
What is the dispute resolution procedure in lease renewals?
Usually, it involves court proceedings or PACT.
Who is the expert witness?
The surveyor representing becomes the expert witness.
What is the primary duty of the expert witness?
They have a primary duty of care to the court and cannot act on an incentivised or contingency fee basis.
What must the expert witness include in their evidence?
They must include a statement of truth that is independent and unbiased, within their scope of experience and knowledge.
What must the expert witness state regarding their conclusions?
They must state the main facts and assumptions they rely on without omitting material facts relevant to their conclusions.
How must representations by the expert witness be made?
Representations must be impartial and uninfluenced by their client.
What do parties typically submit to the arbitrator or expert?
A joint statement of agreed facts relating to key comparable evidence and lease terms.
What happens after the joint statement is submitted?
Each party writes a counter representation in response, which is then considered by the third party who issues their final award/determination.
What is a Calderbank offer?
It is a carefully considered offer labelled without prejudice save as to costs.
How does an expert witness differ from an independent expert?
An expert witness is the surveyor acting for either party, while an independent expert is the appointed third party during the dispute resolution process.
