Conflict Avoidance Flashcards

1
Q

How may failure to comply with contractual obligation arise?

A

Different interpretations of the contract EG in construction or in leases

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2
Q

What happens if you fail to avoid conflicts?

A

incur costs in management and resolution

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3
Q

How to avoid conflicts?

A
  • 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
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4
Q

Dispute Resolution

A
  1. Negotiation - between parties
  2. Mediation - third party intervention
  3. Adjudicative Process - binding 3rd party outcome EG arbitration or independent expert determination
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5
Q

Dispute Resolution

A
  1. Negotiation - between parties
  2. Mediation - third party intervention
  3. Adjudicative Process - binding 3rd party outcome EG arbitration or independent expert determination
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6
Q

Benefits of ADR over Court?

A
  • faster
  • informal
  • greater opportunity for negotiation
  • cheaper
  • better quality decision (surveyor not judge)
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7
Q

Mediation

A
  • neutral mediator facilitates discussions
  • informal and confidential
  • ‘without prejudice’ basis
  • no binding outcome

RICS Guidance Note in Mediation 2014

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8
Q

Arbitration

A
  • 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
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9
Q

Independent Expert Determination

A
  • 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

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10
Q

Expert Witness

A
  • 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

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11
Q

Advocate

A
  • duty to instructing client (act on their behalf)
  • maintain integrity in judicial process
  • must be competent

RICS Professional Statement Surveyors Acting as Advocates 2017

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12
Q

RICS Guidance Note Conflicts of Interest for Members Acting as Dispute Resolvers 2017

A
  • aimed at those appointed to resolve dispute
  • always be impartial and independent
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