Conflict avoidance and dispute resolution Flashcards
What is conflict avoidance and can you give some examples of conflict avoidance procedures.
Proactive conflict avoidance is useful in creating good client relations, avoiding dispute resolution procedures (can be expensive and time consuming), demonstrating professionalism.
- Good writing of legal documentation
- Negotiating contractual obligations
- Clear communication between all parties
- Keeping good records
- proactive conflict avoidance procedures in place
- Managing expectations of both parties
- Risk management plan - realising where issues may arise and creating a plan to deal with them ahead of time.
What is the main form of dispute you have dealt with in local taxation ?
Can you give some examples ?
Issues can be found in - Reg 4 -of the - Nondomestic rating alterations (2009).
- Tone of the list
- MCC
- P&M issues
- Incorrect effective or material dates
- Split’s /Mergers
- Allowances
What is ADR ?
Alternative dispute resolutions
Alternative methods of disputing conflict without litigation,
What are the advantages of ADR ?
Less time consuming Less expensive Greater room for negotiation confidential Can be dealt with by specialist Less formal
Can you name some forms of ADR ?
- Mediation
- Expert determination
- Adjudication
- Arbitration
- Negotiation
- Conciliation
- PACT
What is a Calderbank offer ?
Calderbank v Calderbank [1975] is a offer made on a without prejudice basis. However, if the courts ruling establishes a figure less than the offer made, then the opposition has to pay more of the legal fees of the party that made the offer. Because of the legal fees that could have been saved if they had taken the offer.
What is mediation ?
Done by an independent third party who generally has specialist training in the field. So could be a surveyor.
They provide an impartial opinion on the matter and suggested resolutions however their opinion is not binding.
- Done on a without prejudice basis (non-binding decision until signed by both parties).
- there are different styles which may suit different needs
- Evaluative- generally quick and to the point
- Transformative - more time is taken and parties really understand each other perspective
- Facilitative is a mixture of both of them.-
What is adjudication ?
This is a quick process used to quickly resolve property disputes. Its dose carries a binding decision until dispute determined by litigation or arbitration.
Seen as simplified arbitration process and is a quick process.
What is arbitration ?
Longer procedure that is governed by the Arbitration Act 1996.
- All evidence must be submitted formally by the parties.
- The decision reached is legally binding
- The arbitrator cannot be sued and is protected under Arbitration Act 1996.
Independent expert determination
A independent expert will decide the out come of the case.
1) Evidence can be submitted but the expert can
also gather their own evidence .
2) Decision is binding
3) IE can be sued for negligence ( jones v Kaney (2011)
What is PACT
Professional arbitration on court terms is a RICS developed mediation method for lease terms.
What is the main legislation in resolving disputes for local taxation ?
The Non-Domestic Rating (Alteration of Lists and Appeals) (England) (Amendment) Regulations 2017
Introduced the CCA process.
What is a expert witness ?
What dose a expert witness do ?
Part of the litigation process. A Expert witness provides impartial advice for the courts to consider.
a. Expert witness has an overriding duty to the court
b. They must only act as an expert witness if they are experience and expertise to do so
c. They must make a statement of truth that they will act impartially and objectively
d. They can not cherry pick evidence to suit their case
f. They should make it clear if an issue falls outside their area of expertise & if they believe there is insufficient evidence to conclude a case.
What is a Advocate ? ( May need reviewing around August for any updates) before sitting.
- A surveyor acting for a client as an advocate, represents their client at a judicial hearing/tribunal
- They have a duty solely to the instructing client
- They must act in a way to maintain the integrity of the judicial process
- They must be competent to act in this advocacy role
- RICS Practice Statement and Guidance Note for Surveyors acting as advocates, 2017
What is meant by dual roles ?
The possible roles and duties of a surveyor as an expert witness and/or an advocate, to include an awareness of the existence and scope of applicability of RICS Professional Statements, Practice Statements and Guidance Notes for expert witnesses and
advocates.
