Introduction
When breaches and variations occur in the performance of the strategies outlined in the
contract, disputes are likely to occur. A dispute can arise at any stage of the project. The
traditional and common disputes that occur in the construction industry have often arisen due to
the lack of clarity in the documents, poor communications and a lack of cooperation between the
parties. Disputes are extremely costly and time consuming.
NEGOTIATION
INTRODUCTION
• Negotiation is a dialogue intended to resolve disputes, to produce an agreement upon courses
of action, to bargain for individual or collective advantage, or to craft outcomes to satisfy
various interests. It is the primary method of alternative dispute resolution.
ADVANTAGES & DISADVANTAGES
ADVANTAGES
• No Cost
• Least Time
• High Confidentiality
• No Documentation To Be Maintained
DISADVANTAGES
• Dispute Is Not Analyzed By A Third Party
• Dispute Is Not Technically Evaluated
• No Any Legal Frame Work
• No Specific Proceedings How To Conduct
Usage
Occurs in business, non-profit organizations, government branches, legal proceedings, among nations and in
personal situations such as marriage, divorce, parenting, and everyday life.
Mediation
Introduction
Mediation is a fair and efficient process to help you resolve your employment disputes and reach an agreement. A
neutral mediator assists you in reaching a voluntary, negotiated agreement. Choosing mediation to resolve
employment discrimination disputes promotes a better work environment, reduces costs and works for the
employer and the employee.
Advantages & disadvantages
Advantages
• Least cost
• Least time
• Third parties involvement is there as a facilitator
• Free to discuss the issues
• Less preparation in documents
• Privacy can be maintained
Disadvantages
• Dispute is not analyzed by a third party
• Dispute is not technically evaluated
• The mediator may not be professional for the issue
Usage
• Occurs in business, non-profit organizations, government branches, legal proceedings, among nations and in
personal situations such as marriage, divorce, parenting, and everyday life.
Conciliation
Introduction
• The procedure is a fixed period, fixed fee procedure which provides for the parties to attempt to mediate their
dispute. If no settlement is achieved within the fixed period for mediation, then the conciliator makes a
recommendation which is binding on the parties until finally determined by litigation or arbitration.
Within the fixed period fixed rate scheme there is scope for the parties to chose:-
1. The duration of the procedure.
2. The fees of the conciliator.
There are four steps to the procedure:
1. Agree to use the procedure
2. Choose the conciliator
3. Agree fees and length of conciliation
4. Appointment of conciliator
Advantages and Disadvantages
Advantages
• It is free
• It is independent
• It is informal and non-confrontational
• It is private and confidential
• It is voluntary
• It can result in a binding settlement
• It avoids the stress of the legal process
• Conciliators are impartial and do not take sides
• The conciliation process will not affect the outcome of your case if you eventually go to tribunal
• You can discuss the strengths and weaknesses of your case in a safe environment
• Settlements can include elements not available at tribunal, for example references and agreements to return property
Disadvantages
• There is no sanction on either side for not conciliating, and it can be difficult to get some parties to agree to conciliate
• Complainants might not get an opportunity to meet with their employer face-to-face, as most conciliation take place by telephone
• Settlement requires the consent of both parties
Usage
• Occurs in business, non-profit organizations, government branches, legal proceedings, among nations and in personal situations
such as marriage, divorce, parenting, and everyday life.
Adjudication
Introduction
• Adjudication is the legal process by which an arbiter or judge reviews evidence and argumentation including
legal reasoning set forth by opposing parties or litigants to come to a decision which determines rights and
obligations between the parties involved. Three types of disputes are resolved through adjudication:
• Disputes between private parties, such as individuals or corporations.
• Disputes between private parties and public officials.
• Disputes between public officials or public bodies
Advantages & disadvantages
Advantages
• Least cost compare to litigation
• The dispute is analyzed in detail by an expert / professional
• Least time
• Produces more fair and consistent resolution
• Grounded in the public judicial system
Disadvantages
• Identified as a second class adjudication and not popular in terms of the long procedures
• Decisions makers are lack expertise in the area of disputes resolution
• Results win – lose outcomes
Usage
• Occurs in business, non-profit organizations, government branches, legal proceedings,
among nations and in personal situations such as marriage, divorce, parenting, and
everyday life.
Arbitration
Introduction
• Arbitration, a form of alternative dispute resolution (ADR) is a legal technique for the
resolution of disputes outside the courts, wherein the parties to a dispute refer it to one or
more persons (the "arbitrators", "arbiters" or "arbitral tribunal"), by whose decision (the
"award") they agree to be bound. Other forms of ADR include mediation (a form of
settlement negotiation facilitated by a neutral third party) and non-binding resolution by
experts. It is more helpful, however, simply to classify arbitration as a form of binding
dispute resolution, equivalent to litigation in the courts, and entirely distinct from the
other forms of dispute resolution, such as negotiation, mediation, or determinations by
experts, which are usually non-binding. Arbitration is most commonly used for the
resolution of commercial disputes, particularly in the context of international commercial
transactions.
• Arbitration can be either voluntary or mandatory and can be either
binding or non-binding.
• Arbitration is a proceeding in which a dispute is resolved by an
impartial adjudicator whose decision the parties to the dispute have
agreed will be final and binding. Arbitration is not the same as
judicial proceedings.
Advantages
• When the subject matter of the dispute is highly technical, arbitrators
with an appropriate degree of expertise can be appointed
• Arbitration is often faster than litigation in court
• Arbitration can be cheaper and more flexible for businesses
• Arbitral proceedings and an arbitral award are generally non-public,
and can be made confidential
Disadvantages
• Arbitration agreements are sometimes contained in ancillary agreements, or
in small print in other agreements, and consumers and employees
sometimes do not know in advance that they have agreed to mandatory
binding pre-dispute arbitration by purchasing a product or taking a job
• If the arbitration is mandatory and binding, the parties waive their rights to
access. The courts and a judge or jury decides the case.
• In some arbitration agreements, the parties are required to pay for the
arbitrators, which adds an additional layer of legal cost that can be
prohibitive, especially in small consumer disputes
• In some arbitration agreements and systems, the recovery of attorneys' fees
is unavailable, making it difficult or impossible for consumers or employees
to get legal representation; however most arbitration codes and agreements
provide for the same relief that could be granted in court
• If the arbitrator or the arbitration forum depends on the corporation for repeat
business, there may be an inherent incentive to rule against the consumer or employee
• There are very limited avenues for appeal, which means that an erroneous decision
cannot be easily overturned
• Although usually thought to be speedier, when there are multiple arbitrators on the
panel, juggling their schedules for hearing dates in long cases can lead to delays
• Arbitrators are generally unable to enforce interlocutory measures against a party,
making it easier for a party to take steps to avoid enforcement of an award, such as the
relocation of assets offshore
• Rule of applicable law is not necessarily binding on the arbitrators, although they
cannot not disregard the law.