Conflict avoidance Flashcards
What is a conflict?
A situation where a member or firms duty to act independently and with objectivity in the interest of a client is affected.
Three types
1.Party
2. Personal
3. Confidential
What is Alternative Dispute Resolution ?
Any way of settling a dispute without going to a court or tribunal for a decision.
What are the advantages of ADR?
-Speed
-Informality
-Greater opportunity for negotiation
-Costs
-confidentiality
What is mediation?
The use of a neutral third party who facilities discussions between parties. It is an informal confidential process.
There is no decision making authority and cannot impose a resolution.
What is an independent expert?
the appointment of a neutral third party who issues a decision on the dispute, which is final and binding on the parties. The decision draws on a mix of the third party’s subject matter expertise, the results of their own investigations into the dispute and their analysis of submissions forwarded by the parties.
They can be sued for negligence.
No right of appeal.
Outcome if called a DETERMINATION
CA: What is an expert witness?
Someone who has knowledge and experience of a particular subject manner to help tribunal or court reach a decision by providing an impartial expertise.
Duty of care to the court.
At third party, the role of each surveyor representing the landlord and the tenant switches to being an Expert Witness. This means that they have a primary duty of care to the Court and cannot act on an incentivised or contingency fee basis.
They must each include a statement of truth with their Expert Witness evidence, which must be independent and unbiased and within their scope of experience and knowledge.
They also must state the main facts and assumptions they rely on, without omitting material facts relevant to their conclusions. Essentially, this means that their representations must be impartial and uninfluenced by their client.
When acting as Expert Witnesses, the parties typically submit a joint Statement of Agreed Facts to the appointed Arbitrator or Independent Expert. This sets out the agreed facts relating to any key comparable evidence and lease terms,
CA: What is an arbitrator?
An independent body appointed to settle a dispute.
Acts on evidence provided and the arguments submitted.
There is limited right of appeal and they cannot be held for negligence.
An out come is called an AWARD.
What is a Calderbank?
Used to achieve and early resolution to a dispute to stop cists escalating.
MUST be headed ‘Without prejudice save as to costs’ and not marked ‘STC’
Differences between Expert Witness and Independent Expert?
An Expert Witness is the role that the landlord or tenant’s surveyor will adopt at third party. They submit their expert witness evidence to the appointed third party
An Independent Expert is the role that the appointed third party may act as during the dispute resolution process. They will determine the level of new rent.
Both roles will be fulfilled by Chartered Surveyors, with sufficient training, qualification, knowledge and experience to fulfil the requirements of the relevant role.
Differences between Arbitrator and Independent Expert?
A
-Acts on evidence provided
-limited right of appeal
-not liable for negligence / cannot be sued
-has powers of disclosure
-Outcome called and award
IE
-Duty of care to gather evidence not just rely on evidence provided
-no right of appeal
-can be liable for damages due to negligence
-no powers of disclosure
-determination
