Conflict Avoidance Flashcards
How may failure to comply with contractual obligation arise?
Different interpretations of the contract EG in construction or in leases
What happens if you fail to avoid conflicts?
incur costs in management and resolution
How to avoid conflicts?
- clear, concise drafting of lease
- by anticipating what could go wrong/be misinterpreted
- managing expectations with clear communication
- good record keeping to help resolve conflicts prior to them escalating
Dispute Resolution
- Negotiation - between parties
- Mediation - third party intervention
- Adjudicative Process - binding 3rd party outcome EG arbitration or independent expert determination
Dispute Resolution
- Negotiation - between parties
- Mediation - third party intervention
- Adjudicative Process - binding 3rd party outcome EG arbitration or independent expert determination
Benefits of ADR over Court?
- faster
- informal
- greater opportunity for negotiation
- cheaper
- better quality decision (surveyor not judge)
Mediation
- neutral mediator facilitates discussions
- informal and confidential
- ‘without prejudice’ basis
- no binding outcome
RICS Guidance Note in Mediation 2014
Arbitration
- appointed under Arbitration Act 1996
- parties are bound by decision
- cannot be sued for negligence but decisions can be overruled by Court on point of law
- surveyors act as Arbitrators once completed Chartered Institute of Arbitrators Exams
- PACT used for lease renewal disputes
Independent Expert Determination
- Independent Expert appointed by the two parties or the RICS President
- has expert knowledge of dispute subject and can look at evidence
- parties bound by decision
RICS Guidance Note on Expert Determination 2016
Note: there is RICS panel of independent experts for service charge dispute resolution
Expert Witness
- primary duty of care is to Court (used at lease renewals)
- surveyor should only act as Expert Witness if got knowledge, experience and training and no conflicts of interest
- must act impartially
- can be sued for negligence
RICS Practice Statement Surveyors Acting as Expert Witnesses 4th Edition 2014
Advocate
- duty to instructing client (act on their behalf)
- maintain integrity in judicial process
- must be competent
RICS Professional Statement Surveyors Acting as Advocates 2017
RICS Guidance Note Conflicts of Interest for Members Acting as Dispute Resolvers 2017
- aimed at those appointed to resolve dispute
- always be impartial and independent