What is ADR?
Those other than litigation and arbitration which are not supported by powers of court
What are the benefits?
Faster, economical, privacy, non adverisal
How do you select ADR?
Consider scale, complexity and setting, and which method can best resolve the dispute
Why may disputes occur?
Due to unclear scope which was not properly defined or fulfilied, it is important to recongise signs and the techniques to addresss
How do you prevent disputes?
Good client care such as:
Proactive managment
Clear contract documentation
Record Keeping
Payment Practise
Risk Monitoring
What is negotitation?
Settlement between 2 paries
CA may impartially fact find
Look for common ground
What is mediation?
Mutual 3rd part selected to impartially lead discusion
What is concilisaiton?
Similar to conciliation but may be giving more advise
What is expert determination?
Parites contractually agree 3rd person to make binding decsion based on evicence and cannot be appelaed - could be involved at any stage
What is adjudiation?
Applies to contracts
Appoint made in 7 days of notice
Decision in 28 days
Binding and enforcable under TCC
quickerthan other binding forms
What is arbitration?
Written agreement to arbitrate
Adhere to Arbitration Act 1996
One party must notify the other and both agree
Suitable for more complex situation
What is ligation?
Governed by civil procesure rules
Legal action in court
Binding and enforcable
JCT?
Includes adjudication and arbitration
adjudication is a statutory right
What does RICS offer?
RICS offer DRS which includes:
Adjudication
Arbitration (outside the courts)
Mediation
What are mediation, conciliation, adjudication, arbitration and litigation and expert determination
Mediation (non-binding)
- Both parties agree to appoint mutual mediator
- Mediator can conduct seperate and joint conversations to understand the middle ground of both parties
- They simply faciliate the discsion and not offer opnion or advice
Conciliation (non-binding)
- Same as mediation but offers advice / opinion
Adjudication (binding until resolved via other means / enforcement)
- Offered under HGSRA1996
- Adjudiactor appointed within 7 day notice and provies outcome in 28 days
- Most common form of dispute resulotion
- Dicates review process i.e written or oral
- May determine adjuicators fee settelment procesure
Aribitation (legally binding)
- Goverend by Arbitration Act 1996
- Parties must be indispute and have agreement to aribitrate
- Similar to court procedure but more controlled
- Not multi party
- Not time limited
- Good for more complex cases
Litigation (binding and enforceable)
- Govered by civil procesure rules 1998
- Claimant vs defendee
- Both submit all forms of evidence
- Witness statements no oral
- Allows multiple parties
What are the main differences between mediation, conciliation, adjudication, arbitration and litigation and expert determination
Mediation does not give advice / opinion but conciliation does
Under Aribtration, parites must have a written agreement to aribtrate + more time for case review whilst adjuication is a civl right under the HGCRA and outcome must be given in 28 days
Litigation is public and more formal comapred to arbitration which is simialr to court procesure but flexible
Adgudication is binding until challeneged but Arbitration and Litigation is not
Whats your advice to the client?
Must seek specialist advice
What is alternative dispute resolution?
These include dispute resolution baords such as the Property Ombudsman
Property Redress Scheme
The Centre for Dispute Resolution
