Conflict Avoidance, Management and ADR

Question 1

How would you avoid a conflict?

Answer 1

• Clear drafting
• Proactive risk analysis
• Managing expectations
• Clear negotiations
• Record keeping

Question 2

How would you manage a conflict?

Answer 2

Utilise:

• Processes
• Tools
• Skills

To manage disputes and disagreements

Question 3

What do you do if a conflict can’t be managed?

Answer 3

1. Negotiation to find agreeable position
2. ADR - Alternative Dispute Resolution (to avoid litigation, which is going through court publicly)

Question 4

What form has to be completed before proceeding with ADR?

Answer 4

To undertake ADR, a DRS1 form must be submitted to the RICS to appoint an Arbitrator or Independent Expert

Question 5

What is ADR?

Answer 5

ADR is used to avoid litigation, it involves appointing either:

• Arbitrator
• Independent Expert

Question 6

What is arbitration?

Answer 6

• Statutory (governed by Arbitration Act 1996)
• An arbitrator will ‘award’ a resolution
• Written reps received and they will make a legally binding decision, they can also order a hearing
• Confidential but long process
• Not liable for negligence

Question 7

What is an Independent Expert?

Answer 7

• Regulatory (no legislation, governed by the lease)
• They ‘determine’ a resolution through own investigation
• Written reps received and they will make a legally binding decision
• Confidential and quick
• Liable for negligence

Question 8

When would you use an arbitrator or independent expert?

Answer 8

Arbitrator - Formal, resolves entire issue
Independent Expert - Less formal, resolves specific issue of fact, usually for more technical matters such as contract meaning / valuation issues

Question 9

What can a surveyors role in ADR be?

Answer 9

• Expert Witness
• Advocate

Question 10

What is the role of an Expert Witness?

Answer 10

• Presents evidence to dispute resolver (arbitrator or independent expert) in tribunal
• Role is to the tribunal, not the party - giving opinion of evidence outside the tribunal’s area of expertise
• Give OPINION, not resolution
• RICS Practise Statement & Guidance: Surveyors Acting as Expert Witnesses (4th Edition, 2023)
  Practise Alert in Feb 2024 to remind RICS members of their legal, professional and regulatory obligations when providing expert witness services. Due to concern about the quality of expert witness functions. E.g. is this your area of expertise / is this your own work / have you undertaken necessary investigations / have you reported all the facts

Question 11

What is the role of an Advocate?

Answer 11

• Represents a client in front of a tribunal (in front of an arbitrator or independent expert)
• Provide EVIDENCE, not opinion
• RICS Practise Statement & Guidance: Surveyors Acting as Advocates (2nd Edition Prof Stat, 3rd Edition Guidance Note)

Question 12

Add in rest of stuff