Conflict Avoidance (Level 1) - Genral Flashcards
What procedures can you adopt to avoid disputes?
Effective and clear communication between all parties
Accurate record keeping
Regular reporting and proactivity
Issuing written correspondence to confirm actions and decisions take
Follow company and contractual procedures
Follow RICS standards and professional guidance statements
What is Negotiation?
The process whereby the parties work out between them how to resolve any issues that have arisen. Power to settle the dispute rests with the parties.
What options are there for dispute resolution?
Negotiation - always try this first to try and resolve dispute
Alternative Dispute Resolution (alternatives to Court)
Mediation or conciliation - neutral mediator, facilities discussion but no decision making authority
PACT - form of arbitration used for lease renewal disputes where terms cannot be agreed
Arbitration - in accordance with Arbitration Act 1996
Independent Expert Determination - uses own evidence, governed by RICS
Adjudication - contractual process for construction disputes
Litigation/Court if ADR no good
Ombudsman - organisation that confidentially receives, investigates and facilitates resolution of complaint
Mediation and conciliation?
The parties agree on an independent, third-party neutral system to facilitate discussions between them, with the goal of reaching a settlement. The power to settle remains with the parties, but the process is led by the mediator.
Arbitration
Where both disputing parties agree for a decision to be made by an independent arbitrator (or a panel of arbitrators). The process is formal, similar to court proceedings – but, unlike open court, it is private and confidential.
What is Expert determination
The parties agreed by a contract that a third party will make a binding decision on them. The terms are therefore governed by the contract. In most cases the decision of an expert will be final, and it will not be possible to appeal that decision. This means that the decision of an expert finally determines the dispute without further recourse.
What are the three formal forms of dispute resolution?
Arbitration
Litigation
Adjudication
What is PACT?
Professional Arbitration on Court Terms (PACT) is a joint initiative set up by RICS and the Law Society as a form of alternative dispute resolution (ADR) for lease renewal disputes.
PACT is a process where the determination of all or some of the terms of a renewal lease is (with the consent of both parties) ‘delegated’ to an independent third party who may act either as an arbitrator or as an independent expert.
The objective of the scheme is to increase the effectiveness and flexibility of the legal system and to give a greater choice to both landlords, tenants and to their advisers through the lease renewal process.
PACT offers a viable alternative to litigation and can be used to resolve disputes in the following matters:
Duration of a new lease
Rent / interim rent
Service Charge
Break clauses etc.
What is RICS’ Dispute Resolution Service?
RICS’ Dispute Resolution Service (DRS) is the division of RICS responsible for providing conflict avoidance and resolution services throughout the world with focus on the built environment sector.
What are the advantages of ADR?
Speed – quicker than court
Informality – outside court
Cost – less money spent on professional fees for litigation (more cost-effective)
What is your firm complaints handling procedure?
Ideally resolve in the first instance
Otherwise Complainant issued to Group Company Secretary detailing complaint in writing
Someone from Head Office reverts in 7 days to notify that the complaint has been received and is being looked into
Within 28 days, the final response is then provided by Complaints Handling Officer (or update to the progress and likely timeframe, not more than 8 weeks from receiving the complaint).
If dissatisfied with the final position, they can go to Independent Redress Scheme
Difference between expert witness and independent expert?
Independent resolves dispute at rent review
Expert witness has duty of care to court and present at lease renewal dispute
Who pays expert witness?
THE COURT
