What does ADR mean?
Alternative Dispute Resolution
What are the main methods of ADR?
Negotiation, Mediation, Conciliation, Adjudication, Arbitration
What is negotiation?
An informal discussion between parties with the intention of reaching a settlement without the matter being escalated to more formal proceedings.
What are the pros and cons of negotiation?
Pros: Little to no cost, Quick, Easy; Cons: Can become hostile, Not guaranteed to settle
What is mediation?
When a neutral third party “the mediator” facilitates the negotiation. Impartial and not allowed to give an opinion
What are the pros and cons of mediation?
Pros: Cheap when compared to other methods; Cons: Not guaranteed to settle
What is conciliation?
The same as mediation, however the conciliator is able to offer their advice/opinion
What is an adjudication?
Supposed to a faster way to settle than more formal proceedings. Common in construction. An adjudicator makes a decision for the parties. Standard time frames for all adjudications
What are the pros and cons of adjudication?
Pros: Under the construction act, both parties have the right to adjudicate at any point. Quick – decisions are made in 28 days. Cheaper than arbitration and litigation. Decisions binding; Cons: Rough Justice – rushed 28-day process. Parties bear their own legal costs. Not suited to complex disputes
What is arbitration?
An independent arbitrator reviews the evidence and makes a decision that is final.
What are the pros and cons of arbitration?
Pros: Confidential unlike litigation. Despite being a formal proceeding, its informal compared to litigation. Arbitrator provides an end to the dispute; Cons: Expensive. No jury
What is litigation?
Formal court proceedings
What are the pros and cons of litigation?
Pros: Decision is final. Good for complex cases. Decision is enforceable by law; Cons: Very expensive. Public. Takes a lot of time
What are the differences between arbitration and litigation?
Litigation takes place in a public court and take 6 months to 2 years. Arbitration is private. Litigation has judges and juries, whereas arbitration has an arbitrator
How do you avoid a dispute in the first place?
Circulate meeting minutes via email. Always record conversations via email. Keep records of things. Take lots of pictures. Follow RICS guidance
What is the HGCRA?
Legislation which applies to most construction contracts. Payment terms. Adjudication. Amended in 2011 by Local Democracy Economic Development and Construction Act
Do all parties have the right to adjudicate including domestic clients?
Not domestic clients unless stated in contract
When and what did LDEDCA change?
- Added payless notices. Ban pay-when-paid. Adjudication for oral contracts. Default payment notices
What are the timescales of the adjudication process?
Notice for adjudication. 7 days for referral. 7 more days for a response. 14 days to reply. Decision made 28 days from the notice
What is a final account?
Definitive financial statement to close an account. Final agreed sum of money. Have three months to agree from PC
What were they disputing?
The housing authority put in a claim that the contractor was over charging for works complete. The contractor failed to substantiate for most works complete
What is a scott schedule?
A summary document for assessments on a dispute which details Claim references, Assessment and claim values, Dates, Status, Comments
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