Conflict Avoidance, Dispute Resolution

Question 1

What is a conflict?

Answer 1

Clash of interests between two or more parties

Question 2

What are the 3 main processes available in resolving disputes?

Answer 2

*Mediation

*Arbitration

*Independent expert determination

Question 3

What is a conflict of interest?

Answer 3

A situation where a surveyor’s ability to complete an instruction or act independently/objectively is is jeopardised

Question 4

What is Negotiation?

Answer 4

Problem-solving effort conducted by the parties themselves

Question 4

What is Mediation or Conciliation?

Answer 4

Third-party intervention

DOES NOT BIND Parties to a decision

Assists parties to resolve difficulties

Question 5

What is the Adjudicative Process?

Answer 5

Outcome of dispute is determined by a Third Party, such as litigation or arbitration.

Question 6

What is the Alternative Dispute Resolution service?

Answer 6

ADR is the term used to describe ways of resolving a dispute without having to go to court.

Question 7

What are the benefits of ADR?

Answer 7

1. Speed - Takes less time than lengthy court proceedings
2. Informality - Outside a court
3. Opportunity for negotiation
4. Cost - Cheaper
5. Quality of decision making
6. Confidentiality

Question 8

What are the forms of ADR?

Answer 8

1. Adjudication
2. Mediation
3. Arbitration
4. Expert Determination

Question 9

What is Mediation?

Answer 9

1. Involves ‘neutral mediator’ who facilitates discussion between parties
2. Confidential and Informal Process
3. Mediator has no decision making authority and cannot impose a decision

Question 10

What is Arbitration?

Answer 10

1. Involves an arbitrator was is appointed in a quasi-judicial role in accordance with Arbitration Act 1996.
2. Parties are bound by the decision.
3. Arbitrator can order hearings or consider written representations.
4. Arbitrators cannot be sued for negligence but can be overruled by Court of Appeal on point of law.
5. They possess special knowledge (can be a surveyor having passed Chartered Institute of Arbitrators Exam).

Question 11

What is Independent Expert Determination?

Answer 11

1. Expert is appointed by the two parties (or by RICS President).
2. Expert is specialist in the subject matter of dispute
3. They are appointed to investigate the dispute and received evidence from both parties.
4. Use their own opinion or evidence to decide upon the award.

Question 12

Is there an RICS guidance on Independent Expert Determination?

Answer 12

Yes - RICS Professional Standard on Independent Expert Determination, 2016

Question 13

What does PACT stand for?

Answer 13

Professional Arbitration on Court Terms

Question 14

What is Adjudication?

Answer 14

Say you are aware but is specific to Construction Matters:

• Used for Construction payment disputes
• Adjudicator uses own judgement and relevant law to reach legally binding decision

Question 15

What is an Expert Witness?

Answer 15

• Expert Witness is the role that the landlord or tenant’s surveyor will adopt at third party.
• They provide evidence to the appointed third party, who will either be acting as an Independent Expert or an Arbitrator.
• Act objectively and truthfully
• Duty is to the courts

Question 16

Can an Expert Witness be Sued for negligence?

Answer 16

Yes

E.g Jones vs Kaney (2011) - Expert witnesses are not immune from being sued in tort or contract for their participation in legal proceedings. This case related to Kaney negligently signing off agreement with opposing party to downplay their claimants case.

Question 17

What is Hot Tubbing?

Answer 17

Where Expert Witness consider cases collaboratively and ask each other questions. Undermines their duty to courts.

Question 18

What is an Advocate?

RICS Professional Standard ‘Surveyors acting as Advocates’ 2017

Answer 18

Surveyor acting / representing their client at a judicial hearing / tribunal.

Duty solely to their client

Must act with integrity and competence