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APC > Conflict Avoidance (Good Questions) > Flashcards

Conflict Avoidance (Good Questions) Flashcards

1
Q

What is the best way to avoid conflict?

A
  1. Clear, concise, careful drafting of the contract or lease.
  2. Negotiating contractual obligations carefully and transparently to avoid later conflict / encourage efficient resolution.
  3. Pro-active conflict avoidance risk analysis to understand what could go wrong / misinterpretation prior to agreeing contract.
  4. Keep good records with a sufficient level of detail.
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2
Q

How do you get unambiguous contracts?

A
  1. Clear, concise, careful drafting of the contract or lease.
  2. Negotiating contractual obligations carefully and transparently to avoid later conflict / encourage efficient resolution.
  3. Pro-active conflict avoidance risk analysis to understand what could go wrong / misinterpretation prior to agreeing contract.
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3
Q

If you noted there were ambiguities in a contract what would do?

A
  • Change clauses to ensure they were clear.
  • Keep a good record of discussions with sufficient level of detail.
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4
Q

How does record keeping avoid conflict?

A
  1. Can provide evidence on what was agreed avoiding conflict / encouraging efficient resolution
  2. Photo’s / Pictures on file can support argument
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5
Q

What do you understand by the term ADR?

A
  1. ADR stands for Alternative Dispute Resolution
  2. ADR mechanisms are dispute resolution processes and techniques that fall outside the scope of court litigation
  3. Advantages include:

SPEED - takes less time than lengthy court proceedings
INFORMAL - outside a court
LOWER COST - less money spent on professional fees.
QUALITY OF DECISION MAKING - outcome or award can be made by a surveyor rather than a judge.
CONFIDENTIALITY
GREATER OPPORTUNITY FOR NEGOTIATION

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6
Q

What are the different ADR processes?

A
  1. Arbitration
  2. Independent Expert Determination
  3. PACT (Professional Arbitration on Court Terms)
  4. Mediation
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6
Q

Tell me what you understand about Arbitration?

A
  1. Arbitrator decides a dispute acting in accordance with statute (e.g The Arbitration Act 1996)
  2. Award is produced that binds parties
  3. Arbitrator will have specialist knowledge of the subject area.
  4. Mechanism can be appointed by the RICS Dispute Resolution Service
  5. Proceedings normally dealt with via written representations (arbitrator can order a hearing)
  6. Arbitrators have the power to award costs
  7. Arbitrators cannot be sued for negligence
  8. Can appeal on three possible grounds: Jurisdiction / Point of Law / Serious Irregularity
  9. Can be fast, cost effective and confidential solution to a dispute.
  10. Common form of ADR for commercial / rural rent review disputes.
  11. Relevant RICS Guidance Note is: Guidance Note for Surveyors acting as arbitrators in commercial property rent review disputes (2013).
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7
Q

Tell me what you understand about Independent Expert Determination?

A
  1. Can be appointed by agreement of the parties (may be recorded in lease)
  2. Determination produced which binds parties.
  3. Independent expert will have specialist knowledge of subject area.
  4. Can be appointed via RICS Dispute Resolution Service.
  5. Under a duty to make their own investigations and use there own knowledge and experience to reach a decision.
  6. Often invite written representations from the parties.
  7. Ability to determine costs is determined by the contract.
  8. Can be sued for negligence but very difficult to overturn a determination
  9. Fast, cost effective and confidential solution to a dispute.
  10. Common form of ADR for commercial property rent review disputes. Can also be used for service charge disputes.
  11. Relevant RICS Guidance Note is: Guidance Note for Surveyors acting as independent experts in commercial property rent review disputes (2013).
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8
Q

What’s the difference between Arbitration and Independent Expert Determination?

A
  1. Arbitrator bound by statute / Independent expert is not
  2. Arbitrator produces award / Independent expert produces determination
  3. Can appeal award on three grounds / can not appeal determination.
  4. Arbitrator can not be sued, Independent Expert can.
  5. Arbitrator judges on facts of case whereas Independent Expert is under a duty to make their own investigations and use their own knowledge and experience.
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9
Q

What are the principal differences between the different ADR processes?

A
  1. Arbitrator bound by statute / Independent expert is not
  2. Arbitrator produces award / Independent expert produces determination
  3. Can appeal award on three grounds / can not appeal determination.
  4. Arbitrator can not be sued, Independent Expert can.
  5. Arbitrator judges on facts of case whereas Independent Expert is under a duty to make their own investigations and use their own knowledge and experience.

Mediation has no decision making authority and cannot impose a resolution. Mediation usually conducted on a without prejudice basis.

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10
Q

Which ADR processes are binding?

A
  1. Arbitration, PACT, Independent Expert are all binding.
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11
Q

Can you give me some examples of good practice associated with conflict avoidance?

A
  1. Keep good records, including photos and emails.
  2. Clear, careful, concise drafting of contracts.
  3. Understand what could go wrong or how misinterpretation may arise.
  4. Managing parties expectations.
  5. Negotiating contractual obligations carefully and transparently.
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12
Q

Can you name the three pillars of dispute resolution?

A
  1. Negotiation
  2. Mediation
  3. Adjudication / Arbitration / Litigation
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13
Q

Describe your firm’s conflict avoidance procedures?

A
  1. Created Dispute Avoidance Panel to look at avoidance and prevention
  2. Member of Conflict Avoidance Coalition Steering Group
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14
Q

Take one of the dispute resolution methods and tell me its advantages and disadvantages?

A

Mediation

Advantages:
- Speedy / Cheap / Informal / Confidential

Disadvantages:
- No decision making authority and cannot impose resolution

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15
Q

What is your understanding of Mediation?

A
  1. Mediation involves the use of a neutral mediator who facilitates discussions between the two parties to explore whether a solution can be found.
  2. The process is confidential and informal.
  3. Usually conducted on a ‘without prejudice’ basis.
  4. Mediator has no decision-making authority and cannot impose a resolution upon the two parties.
16
Q

What is conflict management?

A

Conflict management involves the use of processes, tools and skills to find ways to manage disagreements and disputes.

17
Q

What is dispute resolution? How is dispute resolution complicated? What are some examples?

A
  1. Dispute resolution is the resolution of a dispute between two or more parties.
  2. Can be complicated by method by which dispute is resolved
  3. Examples include negotiation and litigation.
18
Q

Tell me what you understand about the RICS Dispute Resolution Service?

A
  1. Worlds largest and oldest provider of ADR services in land, property and construction.
  2. Provides dispute resolution and avoidance services in numerous areas including;

a. Arbitration
b. Independent Expert Determination
c. PACT
d. Adjudication Services

19
Q

What does PACT stand for? What can you tell me about it?

A

PACT = PROFESSIONAL ARBITRARION ON COURT TERMS

  1. Form of ADR specific to business tenancy renewals under L&T 54 Act
  2. Alternative to Country Court - but both parties must agree and correct steps must be taken.
  3. Can be used before or after formal lease renewal court proceedings have been issued.
  4. Joint initiative between RICS and the Law Society.
  5. Dispute resolver can act as an arbitrator or independent expert, as agreed between the parties.
  6. Can be fast, cost effective and confidential solution.
20
Q

Which piece of statute do arbitrators decide disputes in accordance with?

A

Arbitration Act 1996

21
Q

What RICS guidance is there on acting as arbitrators?

A

Guidance Note for Surveyors Acting as Arbitrators in Commercial Property Rent Review Disputes (2013)

22
Q

What RICS guidance is there on acting as an independent expert?

A

Guidance Note for Surveyors Acting as Independent Experts in Commercial Property Rent Review Disputes (2014)

23
Q

What RICS guidance is there on acting as an expert witness?

A

Practice Statement & Guidance Note for Surveyors acting as expert witnesses (2014) - TO BE UPDATED IN 2024

24
Q

What RICS guidance is there on acting as an advocate?

A

Practice Statement & Guidance Note for Surveyors acting as advocates (2017)

25
Q

What RICS guidance is there for surveyors involved in tenancy renewals under PACT?

A

Guidance Notes for Surveyors and lawyers involved in tenancy renewals under PACT (2016)

26
Q

What role can a surveyor play in dispute resolution procedures?

A
  1. Expert Witness
  2. Advocate
27
Q

What do you understand about acting as an expert witness?

A
  1. Must adhere to the rules of the tribunal and act in accordance with the RICS Practice Statement and Guidance Note for Surveyors acting as expert witnesses.
  2. Primary duty is to the tribunal
  3. Must only accept instruction if have knowledge, experience and qualifications.
  4. Must make a declaration and give statement of truth.
  5. Must be independent, unbiased, truthful, not exaggerated, within their expertise.
  6. Cannot be appointed on a success related fee basis.
28
Q

What do you understand about acting as an advocate?

A
  1. Owes a duty to their client and also the tribunal.
  2. Must adhere to the RICS Practice Statement and Guidance Note for Surveyors acting as advocates (2017)
  3. Can advance their case by all fair and proper means.
  4. Must not allow integrity or professional standards to be compromised.
  5. Must not deceive or mislead the tribunal or opposing party.
  6. Should provide a valuation but not offer an opinion.

APC (18 decks)

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