Alternative Dispute Resolution: An Analysis of Methods and Processes

This report provides a comprehensive overview of Alternative Dispute Resolution (ADR) methods, focusing on their application in construction projects. It begins by defining ADR and its advantages over traditional litigation, highlighting methods like negotiation, mediation, and arbitration. The report delves into the specifics of each method, including the roles of mediators and arbitrators, confidentiality, and the processes involved in adjudication and expert determination. It also examines the roles of Dispute Avoidance and Adjudication Boards (DAABs) and mini-trials. The report further explores the differences between domestic and foreign awards in arbitration, the process of filing for arbitration, and the advantages of this approach. The analysis includes relevant case examples, advantages, disadvantages, and the types of construction projects that are not covered by adjudication, providing a detailed understanding of ADR processes and their effectiveness in resolving disputes. Contribute to Desklib to access past papers and solved assignments.

Introduction to ADR

Table of Contents
TASK 1............................................................................................................................................1
1..............................................................................................................................................1
2..............................................................................................................................................1
3..............................................................................................................................................1
4..............................................................................................................................................1
a..............................................................................................................................................1
b..............................................................................................................................................2
c..............................................................................................................................................2
5..............................................................................................................................................2
6..............................................................................................................................................2
a..............................................................................................................................................2
b..............................................................................................................................................2
7..............................................................................................................................................3
8..............................................................................................................................................3
9..............................................................................................................................................3
TASK 2............................................................................................................................................4
1..............................................................................................................................................4
2..............................................................................................................................................4
3..............................................................................................................................................4
4..............................................................................................................................................4
5..............................................................................................................................................5
TASK 3............................................................................................................................................5
1..............................................................................................................................................5
2..............................................................................................................................................5
3..............................................................................................................................................5
4..............................................................................................................................................6
5..............................................................................................................................................6
6..............................................................................................................................................6
7..............................................................................................................................................7

8..............................................................................................................................................7
REFERENCES................................................................................................................................8

TASK 1
1.
In construction project, dispute arises because of disagreement between parties,
misunderstanding, poor relationship, increase of conflict between parties, interaction with
different range of people and failure of one party's promise with regards to a contract. This can
be avoid by using Alternative Dispute Resolution (ADR) which is a technique that is cheaper
and quicker than court and there are range of methods are applied such that facilitation,
meditation, arbitration, negotiation (Binder, 2019). These type of methods are basically used to
solve construction related t disputes and it is also depend upon the situation as well.
2.
ADR is flexible, cost effective and also provide more control to both parties over the
process and results. Also, this method is applicable in all type of cases because It consider the
needs of both parties and also focus on preserve existing relationship as well. For example the
case of PGF II Sa v OMFS company 1 Ltd where defendant had to pay their own cost rather
than P36 offer.
3.
Advantages: Negotiation takes minimum time and also maintain high confidentiality of
data with regards to both the data. Also, there is no document required for this strategy under
ADR and also consider one of the least cost effective method among all.
Disadvantages: The biggest disadvantages of using this strategy is such that it do not
require any legal framework and there is no specific proceedings under this stage and even
results are not evaluated technically (Campolieti and Riddell, 2020). Further, this is also not
analyzed by a third party and decision are taken between two parties only.
4.
a.
The role of mediator under mediation strategy is such that they has no decision making
power but all the information is provided to the mediator which further remain confidential.
Also, they facilitate communication between the parties so that conflict is decreases by solving
their disputes. Further, mediator also assist and guide parties so that they make own resolution.
1

b.
Confidentiality is all about to secure all data related to parties so that it is not used by the
third parties. Under mediation, all the discussion must be confidential so that it do not affect the
result and other party do not take advantage of the same (Claxton, 2020).
c.
Under mediation procedure, mediator provide the document which contain all the
meeting detail from the first party to till end, also the set of timetable for the supply of any such
documentation of first meeting. After resolving the issue, agreeing any preliminary exchange of
document are necessary in which details are mention. Also, each party prepare the list of
document for inspection for the case and also, it is a strict duty to disclose all the documents
which in turn complete the process of mediation.
5.
When case is solve with the help of arbitration, the outcome are generated as per the
standard which are further applicable for a law, also, party has to convince the arbitral tribunal
of their case (Cristabel, 2018). While in mediation, outcome are determine as per the will of
parties and mediator do not decide or negotiate the parties but parties has to accept the outcome.
6.
a.
Smash and Grab adjudication is arises with a result of change to Construction Act that
was effective from 2011. This act is made in the context of payer who wish to pay less than the
amount applied by payee, but when it fails, strict action is taken as well. HGCRA 1996 is
another act which is also applicable for the adjudication in which party has a right to refer a
dispute that arise under a contract under a procedures which comply with this section only.
b.
I) Parties can enter into an Arbitration when there is a dispute and both parties must have to refer
their dispute to a neutral tribunal in order to decide the rights and obligation. On the other side,
when parties do not have any dispute they do not under go arbitration (Gabrieli, Zimerman and
Alberstein, 2018).
II) The mediator requires 1 to 2 days under mediation while Adjudication need 30 days in order
to decide the best outcome for a dispute and it may also extend over a long period only when the
2

hearing is protracted. On the side, arbitration require 12 to 18 months in order to make decision
and provide final decision for a specific dispute.
7.
The process of adjudication is as mention below:
 Commencement, in which the dispute nature is describe
 Appointment of an adjudicator
 Serve the referral notice with proper detail
 Timetable is set
 waiting for response from party
 Final decision
Advantages: This method is cost effective under construction project and also provide fast
decision. Adjudicator also provide written reasoning for their decision which in turn assist to
make final decision (GARROW, 2017). Also, this method is applied when there is no contract
and if the proceeding are conducted in private dispute which is further resolved without opening
the case is court as well.
8.
There are two types of construction project which are not consider under the adjudication
as per the act of Parliament such that Fire- resistive which is high rises. On the other side, wood-
frames type of construction project are also not comes under the adjudication because it do not
help to provide effective results which in turn leads towards wrong results as well.
9.
In order to solve the problem, it is suggested to use negotiation as a method under ADR
because it is method in which both parties negotiate with the terms and condition in order to
resolve the problem. On the other side, this method is cost effective as compared to other
methods and that is why, using negotiation is consider one of the best method. Also, by using
this method, confidentiality is also maintain and method is more flexible than mediation and
arbitration (Harrison, 2018). On the other hand, no third party is involve under this style and
that is why, this method is used as it require less time to finalize the decision as well. Also, some
of the program are voluntary as per the case scenario and that is why, negotiation method is
adopted which in turn leads to make better decision which is accepted by the parties.
3

TASK 2
1.
The role of Dispute Avoidance and Adjudication Board (DAAB) is very crucial such that
all the disputes must be go through this process and if the process is fails then they can
submitted to arbitration. Moreover, DAAB is also offer informal and advice as well as assistance
during a project which has an aim to resolve the issue before it become a dispute. Therefore, it
can be stated that it is a first stage process in a multi- tiered dispute resolution procedure which
help to make better decision.
2.
Expert determination is the third person who is acting as an expert and also appointed by
the parties who wants a solution of the project. Also, expert determination binding on the parties
and they cannot be appeal. Moreover, they are used or mainly suited on the matters which are
completely technical in nature. Such that valuation of variation, adhering with the specification
and many more (Lianbin, 2017). So, it is stated that when expert makes a mistake, both parties
have to suffer and this in turn affect the results of the disputes as well.
3.
Mini- trial is a private process and a first stage of Qatar rail where lawyer of each party
prepare a brief presentation of the case only if it is a trial. After that that presentation is further
observe by a neutral advisor as well as by representative so that they make a decision in order to
settle down the disputes. Also, trial and mini- trial are two different things such that in a mini-
trials, lawyers and experts are presented in a concentrate version where top management are
involved in order to get better decision. So it can be stated that it is not a trial but a settlement
process in which parties present the case in front of panel so that proper decision are made.
4.
Mediation is the form of negotiation which is facilitated by a neutral third party which
helps diputants. Also, rather than imposing a solution, mediator work with parties in order to
solve the conflict sides which in turn explore the interest and make better decision as well
(Menkel-Meadow and Manwaring, 2019). So, with the help of mediation, both parties save
money and it also help to increase the control parties so that better decision are concluded.
4

5.
It is a scheme operating in public and private sector in which former are approved by the
department by complying with suppliers and providers as well. Also it is made to investigate the
complaints and also attempts to resolve them by providing better recommendation or using
mediation as a strategy. Hence with the help of these scheme all the define complaints are easily
solved by applying effective laws and strategies, for example, in 2017, Ombudsman is began a
consultant in order to solve the problem of Children with young people who place them at a
centre of its mandate.
TASK 3
1.
Advantages: It is flexible and more cost effective proved as compared to litigation and
arbitrator is also involved in order to handle the dispute which is not possible under the litigation
process. Arbitration is also awards generally easier to enforce as compared to other method.
Arbitration is proceed by complying with the rules of International Chamber of Commerce
which is deal with the proper process such that request of arbitration, answer to request and
filing, constitution of arbitral tribunal, timetable, expert appointed and exchange of written
submission, hearing and post hearing and then final aware and cost (Zeller and Trakman, 2019).
2.
When the abritrator is absent, then the tribunal may adjourn the proceedings and also
court make an order which require third parties in order to provide proper evidence to the
tribunal. This in turn do not cause delay in the results and proper results are also find out which
helps to make better decision. After some time when arbitrator come, the court again start the
proceedings in order to make better decision in the specified time period.
3
Before filing for arbitration, there is a need to submit Request for Arbitration, which
contain complete detail of all parties and also summary of claim amount with appropriate rules
and language. Also, it is a first step under arbitration, that show how to proceed or commenced
within a construction project (Varapnickas, 2017).
Yes, arbitration agreement is a condition precedent to the filing of an action in court
because obtaining a decision from arbitrator on matters and claim in dispute is also declared as a
condition precedent to the right of member in order to maintain any action.
5

Arbitration agreement is an agreement which is in writing form where parties can decide
the solution of dispute, which is arise with regards to contract agreement and this is refer by
existing as well as future disputes. Also, to avoid the delay, arbitrator is appointed who treat
equally to both parties.
4
Domestic aware are governed as a part I under Arbitral award which means one or more
person are appointed in order to hear the case within one jurisdiction, this award is made by
arbitrator and also complied by court. While Foreign awards are refereed as part II which is deal
with those matters that are deal with outside the scope of arbitration.
Example are Westacre Investments Inc v Jugoimport-SDRP Holding Company Ltd &
Ors [1999] EWCA Civ 1401, where contracts are not be performed in UK by court.
Also, convention award is used in contracting state which is actually free enforced in any
other contracting state but it is subjected to limited defense where different terms and condition
are applied in order to meet the define aim. Like, a party cannot be given proper notice of
appointment of the arbitrator because they are unable to present the same. Also, the award is not
binding upon parties and has been also set aside for the authority too.
5
Arbitrator are appointed in order to avoid delay in arbitration agreement which in turn
liable of the parties and also ensure that overall procedure is matches with the parties need and
disputes as well. Also, make sure that argument of nominating parties are properly considered or
not. Qualifications of an arbitrator includes licensed professional after completing law as an
master degree and who applying for an admission to the state bar association and passing the
bar exam as well (Darwish, 2017). While disqualifications include lack of experience and lack of
independence with regards to this field.
6
Yes, an arbitrator can be challenged only when another third party have an enough
knowledge with regards to relevant facts so that they give rise to justified doubts. This in turn
helps to solve the issue as early as possible by agreeing the terms and condition of both parties.
On the other side, another situation is when arbitrator does not posses required qualification
which is agreed by the parties, then they may challenge and hire another one as well.
6

The procedure for selecting the arbitrator is such that it firstly analyses the arbitration
agreement and determine the rule of incorporating by reference then use Ad hoc arbitration and
analyse whether the qualification is suitable for the define process or not.
The arbitral award can be vacated when it is not govern by the legal principles and it is
ignored and refused to apply it by arbitrator and this situation, it is vacated.
7
Under section 9 of Arbitration Act 1966 , Stay of Proceeding means in relation to a
matter and it also require the English court to stay its proceedings. It is done to resolve the
dispute and also under FAA, stay help a parties to proceed to arbitration directly and on the other
side, dismissal means parties who are opposing the arbitration to a file an immediate appeal and
this in turn litigation the arbitration (Amidou, 2020).
8
Arbitration agreement hold as a contract because it is reflect the parties intention with
regards to resolving the disputes which will be remain effective even if substantive contract is
found effective. But the terms and condition of Arbitration are quite different from the contract
and also proper drafting is also perform in order to reduce the cost of arbitration. While, some of
the cases, it is also not necessarily that arbitration is consider as a contract because arbitration is
govern by the different laws than the substantive contract.
7

REFERENCES
Books and Journals
Amidou, N., 2020. The Arbitral Award and the Enforcement of Investment Disputes: What
Prospects for Implementation in Cameroon. Journal of Taxation and Regulatory
Framework.2(2).
Binder, P., 2019. International Commercial Arbitration and Mediation in UNCITRAL Model
Law Jurisdictions. Kluwer Law International BV.
Campolieti, M. and Riddell, C., 2020. Does Mediation-Arbitration Reduce Arbitration Rates?
Evidence from a Natural Experiment. ILR Review.73(1). pp.211-235.
Claxton, J.M., 2020. Compelling Parties to Mediate Investor-State Disputes: No Pressure, No
Diamonds?. Pepp. Disp. Resol. LJ, 20, p.78.
Cristabel, A., 2018.Arbitrator's Dilemma: Troubles With the Same Person as Both Mediator and
Arbitrator in Indonesia. Juris Gentium Law Review.7(1). pp.67-80.
Darwish, H., 2017. Critical Study on the Concept of International Arbitration in the UAE:
Identifying Problems Affecting the Recognition and Enforcement of Foreign Arbitral
Award (Doctoral dissertation, University of Essex).
Gabrieli, A., Zimerman, N. and Alberstein, M., 2018. Authority-Based Mediation. Cardozo J.
Conflict Resol.. 20.p.1.
GARROW, B., 2017. Mediator & Arbitrator GarrowMediation Toronto, Ontario (Doctoral
dissertation, Harvard Law School, Cambridge, Mass).
Harrison, D.F., 2018. Removing an Arbitrator for Undue Delay. New York Dispute Resolution
Lawyer, p.36.
Lianbin, S., 2017. International Sale of Goods: Combination of Arbitration and Mediation in
China. In International Sale of Goods (pp. 43-49). Springer, Cham.
Menkel-Meadow, C. and Manwaring, M., 2019. Mediation, Arbitration, and Other Neutral
Roles. Negotiation Journal.35(1). pp.161-162.
Varapnickas, T., 2017, April. Brexit and Arbitration: What Happens Next?. In Conference
Papers of the 5th International Conference of PhD Students and Young Researchers.
Zeller, B. and Trakman, L., 2019. Mediation and arbitration: the process of
enforcement. Uniform Law Review. 24(2). pp.449-466.
8