Conflict Avoidance and Management and DRS Flashcards
How do conflicts arise?
Conflicts arise due to failure to comply with a contractual obligation / differing interpretation of the contract itself. Common in construction and under contractual arrangements – leases
How do you avoid conflicts?
To avoid conflicts:
• Require clear, concise and careful drafting of the contract/lease. Only undertaking work when contract is signed
• Being proactive – conflict avoidance risk analysis involves understanding what could go wrong and how misinterpretation between parties could arise
• Managing all parties expectations requires understanding their objectives and clearly communicating these, as well as implementing ‘early warning systems’ including the service of appropriate notices.
• Negotiating contractual obligations carefully and transparently will help avoid later conflict.
• Keeping good records with a sufficient level of detail can often help to resolve conflicts before they escalate.
Name the three main processes / describe them in resolving disputes?
- Negotiation - solving problem/conflict between parties themselves.
- Mediation or conciliation – a third party intervention which does not bind parties to a decision but assists them to resolve difficulties.
- Adjudicative process – an outcome determined by a third party such as arbitration or litigation.
Define Alternative Dispute Resolution methods?
dispute resolution procedures that fall outside the scope of court litigation (Mediation, Arbitration, Independent Expert)
Name the three main ADR methods
Mediation, arbitration and Independent expert
Advantages of using ADR?
- Speed – take less time than lengthy court proceedings following the Civil Procedure Rules
- Informality – outside a court
- A greater opportunity for negotiation
- Cost - less money spent on professional fees for litigation
- Decision making – surveyor rather than judge
- Confidentiality
Describe mediation
- use of a neutral mediator helps parties to a dispute to reach a settlement that they can live with
- Facilitative Mediation – mediator facilitates discussions between two parties to explore if a solution can be found.
- Evaluative Mediation – mediator tells parties what they think of the merits of the case and how they think a court will decide it
- Benefits – informal and confidential.
- Undertaken on a without prejudice basis – noting said in the mediation process can be used in court proceedings
- The mediator has no decision making authority and cannot impose a resolution upon the two parties
- Guidance Note on Mediation, 2014
Advantages of Mediation over Litigation?
- Can help preserve business relationships – normally an ongoing relationship between the parties ie LL/TT, neighbouts, parties to a construction project. The focus of mediation is to achieve a mutually satisfactory settlement, no winners or losers.
- Speed – mediation can be organised quickly and solutions can be achieved wuicker compared to trials and judgement and appeals
- Cost – cheaper than litigation (legal costs, management time)
- Confidentiality
- Avoiding precedent – doesn’t give rise to a precedent for future similar disputes (could be a disadvantage)
- High success rate – 86% success rate according to RICS GN Mediation, 2014
Describe arbitration?
- An arbitration is a legal proceeding under the Arbitration Act 1996 and the arbitrator reaches a decision on the basis of evidence put before him or her sometimes at a formal hearing. The arbitrator can call for discovery of documents and interprets the evidence.
- The arbitrator’s decision is enforceable as if it were a judgment of the court.
- The arbitrator is not liable for negligence the court can set the judgment aside on the grounds of misconduct.
- Arbitrator will have specialists knowledge of the subject area
- Fast, cost effective and confidential solution to a dispute
- PACT – Professional Arbitration on Court Terms is a form of arbitration used for lease renewal disputes
There are guidance notes for arbitrators of different specialisms on RIC website - construction, commerical property rent reviews and rural
Advantages of Arbitration
- Confidential and informal
- Settled quickly and fairly
- Chartered surveyor arbitrator will be able to understand the dispute in land, proeprtyy and construction
Describe Independent Expert Determination
- An Independent expert is appointed by the two parties and has expert knowledge of the subject matter of the dispute.
- Parties are bound by the decision
- IE is appointed to investigate the dispute and receive evidence from both parties. They can use their own opinion / evidence to decide
- Offers speed and specialist knowledge in the solution
- RICS Guidance Note of Independent Expert Determination, 2016
Describe a early neutral evaluation
use of an independent person, experienced in the subject matter of the dispute to investigate and give their non-binding opinion
Describe the role of a surveyor acting as an expert witness?
- Surveyor provides evidence to a judicial body it is an expert witness
- RICS document – PS – Surveyors acting as epert witnesses, 4th Edition 2014
- Expert witness primary duty of care is to the court, even though the client pays the fee
- The expert is required to give an objective and unbiased opinion to matters relating to their experience
Describe the RICS Dispute Resolution Service
• Oldest and largest alternative DRS to construction industry
• 500 practitioners
• Independent and impartial advice
• DRS and avoidance – arbitration & expert determination, adjudication, mediation
• Leaders in High level training in ADR
• Conflict avoidance and conflict avoidance pledge for companies to sign up to
RICS DRS Consultation 2021 – results indicated DRS are significant in RICS’ future, strong recognition that chartered surveyors play an important role in advising and resolving disputes
Define conflict avoidance
Conflict Avoidance ranges from the simplistic, but straightforward, approach of care and management in the preparation of documentation in order to avoid ambiguity and conflicts between parties. This could include the following…
