M006 Conflict Avoidance, Management And Dispute Resolution Procedures, T016 Contract Admin - Dispute Resolution Rics Apc

Front 1

What is dispute resolution?

Back 1

Actions to resolve contractual disagreements between parties.

Front 2

Name some different forms of ADR?

Back 2

Mediation
Conciliation
Negotiation

Front 3

What is Conciliation?

Back 3

Dispute resolution similar to mediation.
Independent party to aid an agreement.
Conciliator has no authority to seek evidence or call witnesses.
Conciliators do not make decisions.
Messenger – shuttle diplomacy

Front 4

What is Mediation?

Back 4

ADR form of bringing in separate impartial third party to mediate and guide a decision which optimises the parties’ needs.
Mediation encourages coming together and agreeing.

Front 5

What is the different between mediation and conciliation?

Back 5

Mediation attempts to bring parties together and agree based on a careful approach which best suits both parties.
Conciliation doesn’t try to being parties together and agrees through a third party acting as a broker.

Front 6

What is negotiation?

Back 6

Parties may through an informal private or facilitated negotiation process agree to settle the dispute either at a high level or in detail and agree to be bound by this settlement

Front 7

What is your most successful negotiation?

Back 7

Haven’t had many as most conducted at a higher level.
Successful final account agreements as both parties felt happy.

Front 8

What could indicate the success of a negotiation on a final account?

Back 8

Both parties come away happy, costs agreed within cost report budgets.

Front 9

What is adjudication?

Back 9

UK statutory dispute resolution procedure

Relatively quick process from submission of referral
Binding until dispute determined by litigation or arbitration
Seen as simplified arbitration process.

Front 10

What enforces the requirement for a building contract to contain provisions for adjudication?

Back 10

The Housing grants, Construction and Regeneration Act 1996.
What contracts does it apply to
Applies to all construction contracts entered into after act commencement of the act and only applies to England, Scotland and Wales as described in the act.

Front 11

What if a building contract does not contain provisions for adjudication?

Back 11

Parties have the statutory right to adjudication assuming the contract qualifies under the construction act.
The Scheme for construction contracts will apply in its entirely

Front 12

What is arbitration, how does it work?

Back 12

Arbitration is a procedure for the resolution of disputes which is under the control of the parties.
Certain conditions must be met: a genuine dispute or difference between the parties (award must be capable of enforcement). Binding agreement to submit to arbitration in contract. Private.
Three available procedures: Documents only (30 days), short hearing (30 days) and full procedure (long).

Front 13

Can you explain in detail the difference between arbitration and litigation procedures? Firstly arbitration:

Back 13

Governed by Arbitration Act 1996
Both parties must agree to arbitrate.
Parties have a wide degree of discretion as to way proceedings conducted.
Procedure similar to litigation with formal submission by parties, expert evidence, hearings and decision by arbitrator
Advantages are that it is a private process, parties have flexibility, arbitration awards generally easier to enforce
3 types: short hearing (1 month), documents only (1 month) and full procedure.

Front 14

Secondly litigation:

Back 14

Litigation: Presentation of arguments in court.
Public process following Civil Procedure Rules
Advantages: Parties do not pay for court or judge, process can deal with multi-party disputes, civil procedure rules aim for accessibility, speed and efficiency.

Front 15

Why do you think the JCT2005 suite of contracts has dropped arbitration in favour of litigation as a form of dispute resolution?

Back 15

Arbitration is intended to be better but rarely works out cheaper.
Arbitration was getting more and more like litigation.
Litigation has improved through Civil Procedure Rules.

Front 16

What else?

Back 16

As mediation as been encouraged, less disputes reach courts and as such courts are more free which in turn reduced timescales.

Adjudication is effectively a simplified arbitration and has further taken away some advantages.