Conflict Avoidance and Management (Level 1) Flashcards
Dispute Resolution - What are the three main processes available?
Negotiation
Mediation and Conciliation
Adjudicative process
Dispute Resolution - What is negotiation?
problem-solving effort of the parties themselves
Dispute Resolution - What is mediation or conciliation?
3rd party intervention which does not bind the parties decisions, but assists them to resolve difficulties
Dispute Resolution - What are adjudicative processes?
An outcome is determined by a 3rd party, such as litigation or arbitration
ADR - What is ADR?
Alternative Dispute Resolution
ADR - What are the benefits of ADR?
Speed
Informality
Cost
Quality of decision making
Confidentiality
ADR - what forms of ADR are there?
Mediation
Arbitration
Independent Expert Determination
Adjudication
Early Neautral Evaluation
ADR - What is mediation?
- neutral mediator appointed
- facilitates discussions between parties
- confidential and informal process
- conducted on ‘without prejudice’ basis
- mediator has no decision-making authority and cannot impose resolution
- RICS Guidance Note on Mediation (2014)
ADR - What is Arbitration?
- arbitrator appointed in a quasi judicial role
- appointed in accordance with the Arbitration Act 1996
- parties are bound by decision
- arbitrators have expert knowledge and cannot be sued for negligence
- decisions can be over-ruled by the Court of Appeal on a point of law
- this offers fast, cost effective, confidential solution to a dispute
- surveyors can act as an arbitrator having passed the Chartered Institute of Arbitrators exams
- PACT (Professional Arbitration on Court Terms) is a form of arbitration used for lease renewals
ADR - What form of arbitration can be used for lease renewal disputes?
PACT (Professional Arbitration on Court Terms)
ADR - What is Independant Expert Determination?
- Independant Expert appointed by two parties (or by president of RICS)
- RICS Guidance Note on Expert Determination 2016
- The expert has expert knowledge of the subject matter
- Experts are appointed to investigate and receive evidence from both parties
- Both parties are bound by the decision
- PACT is also a form of Independant Expert Determination for lease renewals
- This process offers speed and specialist knowledge
- There is an RICS panel of Independant Experts for Service Charge Dispute Resolutions
ADR - Who could you use if you had a service charge dispute?
RICS panel of Independent Experts for Service Charge Dispute Resolution
ADR - What is Adjudication
- for construction
- adjudicator uses knowledge to reach legally binding decision
- strict timescales imposed requiring Adjudicator to decide within 28 days
- In JCT contracts, where no nominated adjudication body, will be RICS
ADR - What is Early Neutral Evaluation?
- use of neutral evaluator, experienced in subject matter to investigate and give non-binding opinion.
- typically highlight strengths and weaknesses of both parties case to help reach settlement
ADR - What is RICS Conflict Avoidance Process (CAP)
- procedure that can be written into contracts to help parties in construction projects resolve dispute before they escalate
- prompts parties to resolve disputes without having to result to arbitration or litigation
- typically a RICS acrredited facilitator asists disputes
Expert Witness - What is an Expert Witness?
- when surveyor provides evidence to a judicial or quasi-judicial body, it as an expert witness
- the expert witness duty of care is to the court or other dispute resolution panel, not the client, despite the client paying the fees
- surveyor should only accept instruction to act as expert witness if competent, have qualifications and no conflict of interest
- The expert must provide a Statement Of Truth and confirm they will act impartially and objectively
- success-related fee is not appropriate
- not immune from civil action and can be sued for negligence
- hot tubbing is where experts consider cases collaberatively and ask each other questions (allowed)
Advocate - What does acting as an advocate mean?
- a surveyor acting for a client as an advocate, represents their client as a judicial hearing / tribunal
- duty of care to client
- must act in a way to maintain the integrity in the judicial process
- they must be competent to act in an advocacy role
Professional Standard - What is Conflict of Interest for Members acting as Dispute Resolvers (2020)?
- assist those appointed by parties or RICS President
- overiding principle is every dispute resolver should be impartial until a final decision has been made
- key themes are impartiality and independence
CHP - What is your complaints handling procedure? CHP 2016
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
Conflict of Interests - Under Conflict of Interest (2017) what procedure do you follow when a conflict arises?
Identify conflict
Disclose conflict
Obtain informed consent
Manage conflict
Document process
Decline or withdraw if unmanageable
Benefits of ADR?
Speed
Informality
Oppertunity for negotiation
Less costly
Confidentiality
High quality decision making
