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Mandatory Comps (except Ethics) > Conflict Avoidance > Flashcards

Conflict Avoidance Flashcards

1
Q

How do you avoid conflicts?

A

Clear drafting of contracts
Keeping good records in enough detail
Adopt conflict avoidance risk analysis - what could go wrong or what could be misinterpreted
Manage parties expectations - understand their objectives

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2
Q

What is a conflict?

A

A disagreement between two parties

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3
Q

What can you do if negotiations break down?

A

Implement dispute resolution procedures

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4
Q

What are the three main processes available to resolve disputes?

A

Negotiation
Mediation
Adjudicative process

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5
Q

What is negotiation?

A

The parties negotiate to try and solve the problem themselves

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6
Q

What is mediation?

A

Neutral mediator facilitates discussions between the two parties to explore whether a solution can be found

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7
Q

What is alternative dispute resolution?

A

Techniques outside of court litigation

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8
Q

What are the benefits of alternative dispute resolution?

A 
Speed - less time than court proceedings
Informality - outside court
Greater opportunity for negotiation
Cost - high court fees
Quality of decision making - outcome made by a surveyor not a judge
Confidentiality
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9
Q

Does the mediator have any decision making authority?

A

No they cannot impose a resolution on the two parties

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10
Q

Are you aware of any RICS guidance on mediation?

A

Yes the RICS Guidance Note on Mediation (2014)

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11
Q

Mediation is usually conducted on a without prejudice basis - why?

A

To ensure that the conversations can’t be used as evidence in court if it ends up going to court

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12
Q

What are the different types of Alternative Dispute Resolution Procedures?

A

Mediation
Early Neutral Evaluation
Arbitration
Independent Expert

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13
Q

What is early neutral evaluation?

A

Independent person, experienced in the subject matter gives their opinion after hearing both parties submissions

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14
Q

Is early neutral evaluation binding?

A

No, the independent person gives their non-binding opinion

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15
Q

What is arbitration?

A

An arbitrator has specialist knowledge of the subject area and gives a binding decision based on evidence which has been submitted by the parties

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16
Q

Are parties bound by an arbitrators decision?

A

Yes

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17
Q

Can an arbitrators decision be over-ruled by the Court of Appeal?

A

Yes but only on a point of law

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18
Q

Can an arbitrator be sued for negligence?

A

No

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19
Q

Can an arbitrator rely on evidence outside what has been submitted by both parties?

A

No

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20
Q

What are the benefits of arbitration?

A

Fast
Cost effective
Confidential

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21
Q

What is PACT?

A

Professional Arbitration on Court Terms - form of arbitration used for lease renewal disputes

22
Q

Can any surveyor act as an arbitrator?

A

No, only surveyors who have passed the Chartered Institute of Arbitrators exams

23
Q

When may conflicts arise?

A

Due to failure to comply with a contractual obligation or due to differing interpretations of the contract itself

24
Q

What is the benefit of avoiding conflicts?

A

Saves costs and time for subsequent conflict management and dispute resolution

25
Q

What is an independent expert?

A

They have expert knowledge on the subject matter of the dispute

26
Q

Who appoints an independent expert?

A

Either the two parties or the RICS

27
Q

What information do both parties have to provide to the independent expert?

A

Evidence is provided by both parties

28
Q

Can an independent expert use their own opinion to decide upon the award?

A

Yes - they can use their own opinion or evidence to decide upon the award

29
Q

Are parties bound by the independent experts decision?

A

Yes

30
Q

What are the benefits of independent expert determination?

A

Specialist knowledge

Speed in solution

31
Q

Are you aware of any RICS Guidance on Independent Expert Determination?

A

Yes the RICS Guidance Note on Independent Expert Determination (2016)

32
Q

What is the difference between an arbitrator and an independent expert?

A

They both have specialist knowledge of the subject of the dispute but an arbitrator cannot rely on evidence from outside what has been submitted whereas an independent expert can use their own opinion and own evidence
Parties are bound by the decision in both instances

33
Q

What is adjudication?

A

Commonly used for construction payment disputes.
The adjudicator uses his own knowledge and the jurisdiction afforded by the relevant law to reach a legally binding decision in a contractual process.

34
Q

Are you aware of any Act’s of parliament relating to Arbitration?

A

Yes the Arbitration Act (1996)

35
Q

What is an expert witness?

A

A surveyor provides evidence in court in relation to a dispute

36
Q

Who does an expert witness have a duty of care to?

A

They have a primary and overriding duty of care to the court, not the client, even thought the client pays the fee

37
Q

Who pays the expert witness fee and are incentive fees allowed?

A

The client and no incentive fees are not allowed

38
Q

When can a surveyor accept instruction to act as an expert witness?

A

Only if they have the knowledge, experience, qualifications and training appropriate for the instruction and have no conflicts.

39
Q

What must the expert witness provide?

A

A Statement of Truth and confirmation that he will act impartially and objectively to the body.

40
Q

What is ‘hot tubbing’?

A

Where experts are sworn into cases alongside each other and are given the chance to ask each other questions.

41
Q

Can an expert witness cherry pick the details to fit the case?

A

No, they must give an objective and unbiased opinion to matters relating to their experience

42
Q

Can an expert witness be sued for negligence in relation to the evidence they give in court? Are you aware of a case relating to this?

A

Yes they can

Jones vs Kaney (2011)

43
Q

Are success related fees allowed? Are you aware of a recent case relating to this?

A

No this is inappropriate

Gardiner & Theobald vs Jackson (2018)

44
Q

Are you aware of any RICS documentation relating to expert witnesses?

A

Yes - RICS Practice Statement for ‘Surveyors acting as expert witnesses’ 4th Edition 2014

45
Q

What is an advocate?

A

A surveyor acting for their client who represents their client at the judicial hearing / tribunal

46
Q

Who does an advocate have a duty of care to?

A

Solely to their instructing client

47
Q

How must an advocate act?

A

In a way to maintain integrity in the judicial process

48
Q

Are you aware of any RICS documentation relating to advocates?

A

RICS Practice Statement and Guidance Note for ‘Surveyors acting as advocates’ 2017.

49
Q

Are you aware of a RICS document relating to conflicts of interest for dispute resolvers?

A

RICS Guidance Note on Conflicts of Interest for Members acting as Dispute Resolvers

50
Q

What are the key themes in the RICS Guidance Note on Conflicts of Interest for Members acting as Dispute Resolvers?

A

Independence and impartiality

Mandatory Comps (except Ethics) (8 decks)

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