Flashcards in The primary features, advantages and disadvantages of a range of dispute resolution procedures and their surrounding statutory and/or non-statutory legal/ judicial context, for example Deck (11)
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1
What is ADR?
Alternative Dispute Resolution
Introduced as part of the Civil Procedure Rules 1998
It is alternative in the sense that it provides a faster and more economic DR procedure
2
What are the SIX ADR procedures?
Negotiation
Mediation
Conciliation
Adjudication
Arbitration
Litigation
3
What are the Civil Procedure Rules 1998?
An improvement to the legal system, making it quicker, cheaper and easier to understand via intro of ADR
Archaic legal terms were replaced with 'plain English'
equivalents
4
What THREE types of courts can civil cases be heard in?
Small claims track (value £25k)
5
What is the process of court claims?
Claim form = court issues this on defendant by request of claimant to start proceedings
Claim form contains statement and particulars of the claim and the remedy sought (money or otherwise)
Claim form must be served on defendant within 4 months of issue arising (can extend to 6 months a foreign jurisdiction)
Defendant can respond, within 14 days after service of
claims form in one of following ways:
o File an acknowledgement of service
o File or serve an admission
o File a defence
If no response from defendant = subject to a Judgment in Default
If defendant files acknowledgement, defendant must state which allegations = admitted, unable to admit and which they deny
The court starts active management of the case as soon the defence is filed
6
What are some other pre-action protocols before filing a court claim?
Aim is to encourage early dispute settlement without needing the court’s involvement, thereby saving time and money for both the defendant and claimant
7
What are the THREE most popular ADR techniques in construction?
Mediation
Arbitration
Adjudication
8
What is MEDIATION?
Most common process of ADR and can be undertaken at any time (before and after court proceedings)
Meeting between parties in the presence of independent appointed mediator who is there to facilitate a resolution
Process is quick, cost effective and can preserve business relationships and has proved to be frequently successful
Often used after informal discussions have not reached solution
Mediation = voluntary and mediator cannot force you / other party to accept solution
Mediation should not be used to solve problems that have to be formally investigated (for example, harassment / discrimination).
Usually quicker than taking legal action, often lasting less than one day and almost always less expensive and stressful
9
What is ARBITRATION?
More formal, contract-based DR process that mirrors litigation
Popular for resolving disputes
Requires an arbitration clause in the contract OR parties to agree to enter into arbitration agreement
Governed by the Arbitration Act 1996
Both sides agree to let an impartial third party, the arbitrator, decide the case
Legally binding – limited rights to appeal, only on basis of errors in law or improper process
Arbitrators have the power to award legal costs
10
What is ADJUDICATION?
Used extensively within UK construction industry under Housing, Grants, Construction and Regeneration Act 1996
Quick and cost effective method allowing both sides to put forward their outline arguments to adjudicator
Decision must be made in 28 days by the adjudicator
Adjudicator = independent 3rd party chosen by parties / Adjudicator Nominating Body (RICS, Construction Industry Council)
Decision = binding - although either party can seek another, more final, review of the dispute
Typically, adjudicators cannot award legal costs
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