MSc in Construction Law and Dispute Resolution - Essay Example

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 In the paper “MSc in Construction Law and Dispute Resolution” the author discusses the enforceability of mediation outcomes and provides recommendations to overcome such difficulties. Dispute resolution method potentially ensues in the three outcomes…
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MSc in Construction Law and Dispute Resolution
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Download file to see previous pages Recent years have registered a growing trend of alternative dispute-resolution methods, for instance, mediation, adjudication, conciliation, and various other hybrid arrangements1. This can be attributed to the drawbacks associated with arbitration and litigation, namely, the upsurge in costs, deferrals and hostile relationships between parties. Unfortunately, during the last decade superfluous and increasingly complicated stipulations were incorporated in construction contracts. In general, this involved the addition of numerous alternative dispute resolution methodologies and arbitration divided into redundant tiers2. These apparently more economic and swift alternative dispute resolution techniques only rendered the process more ineffective instead of the other way round. Mediation plays an integral role in determining the conditions of contracts. The exercise of Alternative Dispute Resolution has gained widespread prominence for working out differences in every sphere of life. During recent years legal systems have increasingly adopted restorative justice practices3, this implies that Alternative dispute resolution is even employed for dealing with criminal cases. ...
2. Dispute Resolution Methods Dispute resolution method potentially ensues in the following three outcomes, namely, an agreement (negotiation), compromise (conciliation) or judgment (court or arbitration rulings). The mediation outcome falls under the agreement and cannot legally bind parties to abide by the mediation outcome unlike arbitration or court proceedings5. But to be an ideal solution, the agreement should meet the interests of all participant parties. 3. Categorization Of Mediation Outcome Arbitration comprises a ruling given by a neutral, mutually nominated arbitrator. However, mediation outcome can be classified as a contract6. By taking into account elements that validate a contract, we can notice that in a mediation outcome, the opposing parties exchange informed offers and acceptances in order to determine an outcome. Moreover, consideration and intention to enter into a legal relationship exists so it can be concluded that it is simply not a concurrence of offers and acceptances. Therefore, the mediation outcome meets the criteria of a contract and should not be confused for a judgment which is a legal determination imposed on parties regardless of their consent. 4. Discharging Mediation Outcome The creditor should normally expect a voluntary settlement as regards to the obligation as is the case in normal contracts. However, in the case where the debtor continues to defer the obligation, the outcome will vary according to the commencement of the mediation process. Normally, two hypothetical circumstances exist: 4.1 Parties choose Mediation over Litigation As mentioned before, a mediation outcome is simply a contract; hence, the creditor can utilize the same remedies as are available to a contractor.  ...Download file to see next pagesRead More
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