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Conflict Avoidance, Management & Dispute Resolution Level 1 - Coggle…

- - - - a) Collaborating (highly assertive and cooperative)
      - b) Competing (highly assertive)
      - c) Avoiding (unassertive and uncooperative)
      - d) Accommodation (highly cooperative)
      - e) Compromising (equilibrium)
- - - - Definition - ADR refers to the processes which are alternative to the traditional binding dispute resolution procedures of litigation and arbitration. Main forms of ADR:
        
        1) Negotiation
        
        Definition - The process whereby the parties work out between them how to resolve issues that have arisen. Power to settle the dispute rests with the parties
        
        Main Characteristics of Negotiation
        
        1) Negotiation ends when both parties come to an agreement
        
        2) Suitable for simple matter, easily resolvable, compromises made
        
        3) Requires co-operation of both parties
        
        Two main approaches to negotiation
        
        1) Competitive - low offer, much less than would really accept and their tactic is to raise offer gradually while weaving in other matters in order to settle
        
        2) Principled - interest-based cooperative negotiations. Key to this approach:
        
        a) Separate people from the problem - focus on issue not attack each other
        
        b) Focus on interests not positions - should consider reasons for demands and search for mutual interests which can be bargained over
        
        c) Invent options for mutual gain - consider ways for give and take
        
        d) Insist on objective criteria - rather than just bargaining over amount, identify objective criteria or steps which can be used in order to work to a more accurate value.
        
        e) Properly assess an alternative to a negotiated settlement
        
        Advantages
        
        1) Non-adversarial so preserves the relationships
        
        2) Private
        
        3) Quick
        
        4) Flexible
        
        5) Can be binding
        
        6) Inexpensive
        
        Disadvantages
        
        1) Compromise may not be a true reflection of the issue
        
        2) Generally non-binding
        
        3) Costs mat not be recoverable
        
        4) Some are wary of disclosing too much information in case a future case is compromised
        
        2) Mediation
        
        Definition - The parties agree on an independent, third-party neutral system to facilitate discussions between them, with the goal of reaching a settlement. The power to settle remains with the parties but the process is led by the mediator
        
        Main Characteristics of Mediation
        
        1) Mediation encourages coming together and agreeing
        
        2) Its done by mutual agreement
        
        3) The process can be initiated at any time between the parties
        
        4) The mediator does not award a winning party
        
        5) The process is non-binding
        
        Advantages
        
        1) Similar to negotiation
        
        2) Non-adversarial
        
        3) Flexible
        
        4) Seeks to find common ground which could lead to a less harsh litigation proceedings
        
        5) Short procedure
        
        Disadvantages
        
        1) Mediator does not normally state their opinion or state specialist advice
        
        2) Not suitable for complex situation
        
        3) Generally non-binding
        
        4) Costs may not be recoverable if no agreement is found
        
        3) Adjudication
        
        Definition - Adjudication was developed to allow for construction contract disputes to be resolved more quickly and cost-effectively than resolution through arbitration or litigation. Its objective is to provide a fast-working solution to an issue without the need for a more formal dispute resolution procedure so that parties can quickly resume or continue work under the contract
        
        Adjudication process
        
        1) Following the crystallisation of a dispute, either party can serve a notice on the other party of its intention to refer the dispute to adjudication
        
        2) Within 7 days of the issue of the notice, the referring party must serve upon the other party its referral/statement of case. If the referral is not served within that time, the adjudication is likely to be void
        
        3) The referral must contain a detailed explanation of the referring part's claim in respect of the dispute identified within the notice, along with any supporting documentation
        
        4) Within that 7-day period, the referring party must secure the appointment of an adjudicator. This will either be a person named in the contract or, if no-one is named by using the nominating body identified in the contract.
        
        5) Following the appointment, the adjudicator will set out a timetable, this will usually permit the other party to issue a response to the Referral
        
        6) The adjudicator must make his decision within 28 days of the Referral. (That time can be extended to 42 days by mutual agreement of both parties)
        
        Is the adjudication process binding?
        
        The adjudicator's decision will be binding on the parties and enforceable in court, unless the adjudicator acted outside his or her jurisdiction or was biased towards one party.
        
        Is there an appeal process?
        
        There is no appeal process; however, the parties can take the same dispute to litigation or arbitration if the contract contains an arbitration agreement.
        
        What if a building contract does not contain provisions for adjudication?
        
        Adjudication became a legal right in relation to construction contracts in the UK when legislation known as the Construction act came into force
        
        Who pays for the adjudication?
        
        1) Both parties are jointly liable for the adjudicator's fees
        2) The Adjudicator can usually decide who is to pay the fees and reasonable expenses
        
        Advantages
        
        1) Private
        
        2) Statutory rights apply with adjudication
        
        3) Adjudicator must act impartially
        
        4) Speed - Decision within 28 days although can be extended by 14 days
        
        5) Decision is binding until finally determined in arbitration or litigation
        
        6) Simplified arbitration process
        
        Disadvantages
        
        1) Each party bears their own costs, even if successful
        
        2) Relatively expensive
        
        3) Adversarial (Confrontational as evidence has to be provided)
        
        4) Conciliation
        
        Definition - A process similar to mediation used in the construction industry whereby a conciliator seeks to facilitate a settlement between the parties. The conciliator does not decide any issues of law or fact but conducts a process whereby each party states its position and then attempts to work towards a compromise. Some important points to note
        1) Its an independent party to aid an agreement
        2) Conciliator prepares a 'recommendation' which sets out their solution to the dispute, if neither party dissents from that recommendation or initiates adjudication or arbitration then the recommendation becomes final and binding
        
        What is the difference between mediation and conciliation?
        
        1) In mediation, mediator acts as a facilitator who helps the parties in agreeing
        
        2) Conciliation allows for the facilitator to play a more direct role in the solution for the dispute. The facilitator can make suggestions towards certain proposals and give advice for certain solutions
    - - Definition - Handles disputes about buildings, engineering and surveying. The TCC does not normally handle cases with a value less than £250,000 unless there is a good reason.
    - - Disputes can occur for many reasons. In my experience, the most common cause of disputes is unclear objectives and accountability at the outset of any project, compounded by poor communication and performance monitoring. Key causes of disputes in the construction industry:
        
        Delay
        
        Acceleration
        
        Culture
        
        Uncertainty
        
        Differing goals
        
        Quality
        
        Ambiguous tenders
        
        Variations/scope change
    - - Expert Witness
        
        Definition - An expert witness is defined as a person whose experience and knowledge in a particular field is beyond what is expected of a layman. An expert witness makes his or her knowledge available to the court or other bodies to help it understand the issue before it can reach a just and reasoned decision
      - Expert determination
        
        Definition - Expert determination is the process whereby the parties agree to refer their disagreement to an impartial expert third party and will the be bound by his or her decision. Key Points:
        
        1) The parties can choose who the appointed expert is
        
        2) More informal than arbitration of litigation
        
        3) Ideal for technical disputes
        
        4) Expert determination is generally simpler and cheaper than arbitration or litigation, can be used as a short cut yo a binding decision
        
        Advantages
        
        1) Confidential procedure which is less adversarial and helps parties maintain a work relationship
        
        2) Provides a cost and time efficient solution for resolving issues
        
        3) Procedures are controlled by the parties rather than a court or arbitration rules
        
        4) An expert can be appointed who is familiar with the specific technical issue(s)
    - - Definition - Arbitration is essentially a lawsuit but without court involvement. The parties agree either in a contract before a dispute arises or through subsequent agreement to avoid a lawsuit to submit their dispute to arbitration rather than pursue a lawsuit in court. The parties agreement gives the arbitrator the power to issue a decision as to the parties' right and obligations an such decision will be legally binding on all parties
        
        Advantages
        
        1) The process is private as there is no public record of any proceedings, although not necessarily confidential
        
        2) Speed compared to litigation
        
        3) The parties can agree on an arbitrator with relevant expertise in the matter
        
        4) The arbitrators award can be enforced as a judgement of the court
        
        Disadvantages
        
        1) The parties must bear the cost of both arbitrator and the venue
        
        2) Limited appeal rights
        
        3) If the matter is complicated but the amount of money involved is modest, then arbitrator's fees may make the arbitration uneconomical
        
        4) It does not offer the litigation advantage of precedent
    - - Definition - Litigation involves one of the parties commencing a claim in the civil courts. The courts have inherent jurisdiction to hear a dispute in respect of just about anything. The nature, complexity and value of the dispute will determine which court will hear a particular dispute
        
        Advantages
        
        1) Judges can compel the parties to comply with time frames and have powers of sanctions for non-compliance
        
        2) Judges have the power to make orders to provide interim relief protect a party's position pending the final judgement
        
        3) There are defined rights of appeal in cases where errors of fact or law are made
        
        4) Provides maximum degree of certainty
        
        5) A Legal precedent can be sought
        
        6) The public nature of litigation may encourage debate and could secure a change in legislation
        
        Disadvantages
        
        1) Potentially greater costs if the dispute is not well managed or if the other party seeks to delay the proceedings
        
        2) Potentially longer period to obtain judgement
        
        3) Proceedings are generally conducted in public
        
        4) Judgement will be subject to appeal