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 Flashcards Preview

Conflict Avoidance, Management and Dispute Resolution Techniques > 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 > Flashcards

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

11

What do you understand by Statutory?

Statutory Law (Statue Law) is set down by legislate