Conflict Avoidance And Dispute Resolution

Question 1

What are good practices to avoid conflicts

Answer 1

Keeping good records with sufficient detail can often help conflicts before they arise

Negotiating carefully and transparently will help to avoid further conflict

Managing all parties expectations with clear communication

Adopting pro active risk analysis by asking what could go wrong before it does

Question 2

3 main forms of dispute resolution

Answer 2

Negotiation

Mediation with a third party which does not bind the parties to a decision but helps them resolve difficulties

Adjudicative process such as arbitration or litigation

Question 3

Benefits of alternative dispute resolution instead of going to court

Answer 3

Cost, speed, surveyor decides instead of judge, confidentiality and a greater opportunity for negotiation

Question 4

3 main forms of ADR Alternative dispute resolution

Answer 4

Mediation
Arbitration
Independent expert determination

Question 5

What is mediation

Answer 5

Confidential and informal process which involves an independent third party to help both parties come to a mutual agreement. Mediator has no decision making authority

Question 6

What is arbitration

Answer 6

Parties are bound by the decision of the arbitrator, have specialist knowledge of subject area and cannot be sued for negligence but decisions can be over-ruled by appeal. Offers a fast cost effective and confidential solution to a dispute.

Question 7

What is an Independent expert

Answer 7

Appointed by the two parties and has expert knowledge of the subject matter of the dispute. Appointed to investigate and receive evidence from both parties.

Operates under terms of contracts but not bound by any formal arbitration laws. Can serve as guidance not necessarily binding.

Can allocate costs if the agreement provides for it although it is unusual as this is typically an informal method of dispute resolution

Question 8

What is an expert witness

Answer 8

(Not to be confused with expert determination)

Surveyor acts in court providing their expert opinion. Cannot cherry pick data and does not act for client paying the fee but the court. Can also be sued for negligence

Question 9

Acting as an advocate

Answer 9

Similar to expert witness but surveyor acts for client and produces evidence based on clients objectives although they must act in a way to maintain the integrity of the judicial process

Question 10

Discuss action by head of regulation

Answer 10

This is the first step. They can initiate one of four actions. These are:

1. Serve a fixed penalty notice
2. Make a regulatory compliance order
3. Refer the matter to a single member of the regulatory tribunal for consideration
4. Refer the matter directly to a disciplinary panel

Question 11

If a breach of conduct is referred to a disciplinary hearing, what penalties can be imposed on the breaching party?

Answer 11

Referral to a disciplinary panel is used for more severe breaches. The panel is made up of 50% RICS and 50% Non RICS members

1. Issue consent order
2. Impose fine
3. Conditions on continued RICS membership
4. Expulsion
5. Publication of results in Modus magazine