Summary
Summary - BPPD6812 (BPPD6812)
- Course
- BPPD6812 (BPPD6812)
- Institution
- University Of The Freestate (UFS)
Summary of work for exam first semester
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ADJUDICATION Document only approach1. Neutral third party Adjudicate – “give a ruling or to judge.”
2. Cost effective form of ADR.
Aim – to settle dispute prior to completion of contract.
3. Binding decision on
disputing parties, FINAL,
HISTORY
until overturned by arbitration or litigation.
Latham report –
GENERAL PRINCIPALS
advocated the use of
1. No restrictions on issues that can be referred to adjudication. ADR on construction
2. Adjudicators should rather be construction professionals. contracts in SA.
3. Must provide decision within time limit after referral. No statutory right to
4. Strict time periods for actions within the process. adjudicate in SA, it is
5. Parties MUST settle their debt with other party before any introduced via
subsequent legal action / arbitration takes place. contractual terms in
6. Adjudicators must be paid, may require deposit. common law.
Included in GCC 2004,
PROCESS
later in JBCC 2005 PBA
Dispute about interim payments, delay and disruptions, EOT for
completed work, final accounts arise – main purpose to maintain cashflow during construction. Hearing not
compulsory.
ADVANTAGES
1. Contractual remedy – time limits apply,
2. Relatively quick and inexpensive,
FORMS OF ADJUDICATION
3. Cash flow is maintained whilst dispute is ongoing, work Standing Adjudication
continues. board – 3 people
appointed at beginning of
4. Adj have extensive engineering knowledge, matters can be contract (GCC and FIDIC)
evaluated technically, AD Hoc: Single
adjudicator is appointed
5. Facts are fresh and personnel readily available, when dispute arises (JBCC
and NEC)
DISADVANTAGES
1. Documents only approach may lead to large volume of paper.
2. Testing of evidence is cut out because no hearings,
3. Need for competent Adj may be difficult to find.
4. Rough justice due to time constraints in making the award.
Decisions must be implemented
immediately irrespective if parties are
referring to arbitration or litigation.
, MEDIATION AND CONCILIATION Voluntary Process
1. Relaxed atmosphere between parties, helps to build Private and Confidential
trust and makes for open and honest
Evolving to Resolve
communication.
2. Create atmosphere free of anxiety, open platform FACILITATIVE OR EVALUATIVE
where questions can be asked and answered.
3. Neutral third party facilitates process.
GENERAL PRINCIPALS
Success depends on willingness of parties to make concessions to reach mutual decision.
No judgement handed down that is final and binding.
PROCESS
1. Structured process, mediator encourages all to work together towards solution.
2. Opening session, afterwards jointly or separate meetings to discuss facts, reach common ground.
3. Agreement is written down, clear end to process, binds parties contractually when signed.
ADVANTAGES
1. Less formal, cheaper, faster. PRACTICAL EXAMPLES
2. Parties have control over the process, leads to
Defective work by contractors
problem solving.
3. Confidential Defective plans by Arch and Eng
4. Preserves business relationship, win – win for all.
Delays in project completion
5. Decision is not so final that other ADR may be
considered. Payment issues
DISADVANTAGES Changes in scope of work
1. Success depends on parties co-operating with Property damage
process.
2. Stronger parties may use it to exploit weaker parties.
3. Some disputes are too complex to be resolved by mediation.
4. Certain disputes have passed the point of consensus, will only be waste of time and money.
TIPS and TRICKS
Find common ground.
Use words like “I think we made progress in this session”.
Acknowledge strong emotions.
Ask questions.
Mutualising – show both parties they are unhappy.
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