Conflict Avoidance and Management (Level 1)

Question 1

Under JCT (Joint Contracts Tribunal) how long does an adjudicator have to make his award?

Answer 1

28 days from issue of the referral notice, but this can be extended to 42 if both parties agree.

Question 2

How do you avoid conflict on a project?

Answer 2

Firstly, ensure that the tender information is clear, concise when tendering the project. i.e. a clear scope of works.

If there is a dispute, use a people approach first and try to negotiate an agreement before going legal.

As a last resort you should go legal.

Question 3

What is the difference between Mediation and Conciliation?

Answer 3

Mediation is a voluntary procedure, which involves the appointment of a third party mediator, who will help to facilitate negotiations between parties. Them aim of mediation is to help the parties reach an amicable agreement.

Conciliation is also a voluntary procedure, which involves the appointment of a third party Conciliator. The role of the conciliator is to also facilitate negations, however the Conciliator will create a settlement proposal

Question 4

What is ADR?

Answer 4

Alternative Dispute Resolution

Introduced as Civil Proecedure Rules 1988
. Negotiation
. Mediation
. Conciliation
. Arbitration
. Expert determination
. Finally litigation

Question 5

What are the Civil Procedure Rules 1998?

Answer 5

An improvement to the legal system, making it quicker, cheaper and easier to understand through the introduction of Alternative Dispute Resolution (ADR).

Question 6

Dispute resolution for rent review or lease?

Answer 6

?

Question 7

How would you negotiate something?

Answer 7

Understand points

Pre-determine what you can give away, know bottom line

Focus on bigger picture

Win/win situation

Never accept first offer

Negotiate small deals before big ones

Question 8

What is the adjudication process?

Answer 8

Notification of Adjudication from one party to another

From receipt notification, 7 days to appoint adjudicator

Adjudicator review parties cases, make decision in 28 days. Can be extended to 42

Adjudicator does not have power to award costs, unless parties agree

Question 9

What is Litigation?

Answer 9

Process of taking legal action

Question 10

What is arbitration?

Answer 10

Use of arbitrator to settle disputes

Question 11

What is the arbitration process?

Answer 11

Appoint arbitrator

Hearing of both parties

Arbitrator base decision on what deemed to be fair

Difficult to appeal arbitrator
. Only if corrupt
. Bias
. Exceed power

Question 12

What is a dispute board?

Answer 12

Group assigned on project from inception.

Preventative measure

Big projects

Question 13

Why can disputes occur?

Answer 13

Poor performance of parties

Uncontrolled change

Complex contractual issues

Inappropriate procurement

Question 14

How are disputes avoided?

Answer 14

Robust tender and contract documentation

Controlled change

Sensible risk allocation

Appropriate financing

Question 15

What techniques are available to resolve disputes?

Answer 15

Negotiation

Mediation and conciliation

Adjudication

Arbitration

Question 16

Difference between adjudication and arbitration

Answer 16

Adjudication – parties in construction contract entitled to adjudication. In JCT contracts, where no nominated adjudication body, will be RICS. Education cheaper and quicker as decision must be made in 28 days. Decision can be appealed and taken to arbitration or litigation. Confidential.

Arbitration is alternative to litigation. Where arbitration is allowed, president of RICS will select arbitrator. Decision is final and binding, unless appealed. Arbitration confidential if parties agree.

Question 17

What are ADR techniques?

Answer 17

Alternative dispute resolution
. Speed
. Informality
. Less expensive
. Experts not judges

Question 18

How do you avoid conflict and how do you manage it

Answer 18

Reach for ADR first

Apply RICS professional and ethical standards

Question 19

Common forms of report

Answer 19

Formal
Informal
Annual report
Expense report

Question 20

Under Conflict of Interest (2017) what procedure do you follow when a conflict arises?

Answer 20

Identify conflict
Disclose conflict
Obtain informed consent
Manage conflict
Document process
Decline or withdraw if unmanageable

Question 21

What is your complaints handling procedure? CHP 2016

Answer 21

Under RICS guidance, CHP needs to be accessible to clients and stakeholders

Issued at outset of engagement, or upon request

Designated Complaints Handling Officer

Acknowledge within 7 days via written communication

Investigate

Written response after 28 days of receiving

Independent redress if not happy

Question 22

What are the advantages of Alternative Dispute Resolution (ADR)?

Answer 22

Speed – takes less time than lengthy court proceedings following the Civil Procedure Rules

Informality – outside a court

Greater opportunity for negotiation

Cost – less money spent on professional fees for litigation

Quality of decision making – as outcome or award can be made by a surveyor rather than a judge

Confidentiality

Question 23

What is mediation?

Answer 23

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

A confidential and informal process

Mediation is usually conducted on a ‘without prejudice’ basis

Mediator has no decision-making authority and cannot impose a resolution upon the two parties

RICS Guidance Note on Mediation, 2014

Question 24

What is arbitration?

Answer 24

Arbitrator appointed in a quasi-judicial role in accordance with the Arbitration Act 1996

Parties are bound by the decision

Can order a hearing or consider written representations

Will have specialist knowledge in the subject area

Cannot be sued for negligence but their decision can be over-ruled by the Court of appeal on a point of law only

Offers a fast, cost effective and confidential solution to a dispute

Surveyors can act as an arbitrator having passed the Chartered Institute of Arbitrators exams

Question 25

What form of arbitration can be used for lease renewal disputes?

Answer 25

PACT (Professional Arbitration on Court Terms)

Question 26

What is independent expert determination?

Answer 26

Independent expert is appointed by the two parties (or by President of the RICS undertaken by the RICS Dispute Resolution Service)

Expert has knowledge on the subject matter of the dispute

Both parties are bound by the decision

Independent expert is appointed to investigate the dispute and receive evidence from both parties

They can use their own opinion or evidence to decide upon the award

Process offers speed and specialist knowledge in the solution

RICS Guidance Note on Independent Expert Determination, 2016

Question 27

Who could you use if you had a service charge dispute?

Answer 27

RICS panel of Independent Experts for Service Charge Dispute Resolution

Question 28

What is early neutral evaluation?

Answer 28

Use of an independent person, experienced in the subject matter of the dispute, to investigate and give their non-binding opinion

Question 29

What is an expert witness?

Answer 29

When a surveyor provides evidence to a judicial or quasi-judicial body

The expert must provide a Statement of Truth and confirmation that they will act impartially and objectively to the body

Should give an objective and unbiased opinion to matters relating to their experience - they cannot ‘cherry pick’ the details to fit the case

RICS Professional Statement for Surveyors acting as expert witnesses, 2014

Question 30

Who is an expert witnesses primary duty of care to?

Answer 30

The court or other dispute resolution panel and not the client, even though the client pays the fee

Question 31

What should a surveyor consider when deciding to take on an instruction as an expert witness?

Answer 31

Should only accept instructions is they have the knowledge, experience, qualifications and training appropriate and have no conflicts

Question 32

What is the difference between arbitration and independent expert determination?

Answer 32

Arbitrator is governed by the Arbitration Act 1996, whereas Independent Experts are governed by Common Law

Arbitrator can only make decisions based on parties’ submission, whereas Independent Experts can make appropriate investigations and use their own expert judgement

Arbitrator has freedom to decide how the fees and costs are apportioned between the parties, whereas parties can decide how Independent Expert fees are apportioned

Arbitrator is not liable for negligence and cannot be sued, whereas an Independent Expert can be liable for liable

Ability to appeal arbitration under a point of law, whereas there is no right of appeal against an Independent Expert determination

Question 33

Who is an Independent Expert appointed by?

Answer 33

Either by the President of the RICS or by the agreement of the parties

Question 34

What is the role of an advocate?

Answer 34

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