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VT APC > Conflict Avoidance, Management and ADR > Flashcards

Conflict Avoidance, Management and ADR Flashcards

1
Q

What are causes of disputes?

A
  • Differing terms between parties
  • Poor construction of a contract / agreement
  • Insisting on acceleration of a construction project
  • Work not being properly coordinated
  • A variation of cultural values
  • Different goals
  • Delays
  • Design
  • Design failures
  • Project overcomplexity
  • Issues with tender
  • Value engineering
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2
Q

How would you avoid a conflict?

A
  • Clear drafting
  • Proactive risk analysis
  • Managing expectations
  • Clear negotiations
  • Record keeping
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3
Q

Explain managing risks to avoid conflicts?

A
  1. Identify risk
  2. Allocate risk to party most suited to deal with it
  3. Manage the risk
  • Early warning systems to identify and communicate problems early to achieve quick resolution
  • Contract should specify that parties should work together to find best solution for all parties involved
  • Use partnering
  • Effective client briefings
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4
Q

What should contracts be?

A
  • Applicable to area they cover
  • Include Early Warnings that include obligations to parties to identify / communicate problems earlier
  • Good contract management
  • Viable Contract Event Procedure (CEP)
  • No ambiguity
  • Clarity (plain simple English, avoiding legal terms and jargon so it can be understood by people using it)
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5
Q

How would you manage a conflict?

A

Utilise:

  • Processes
  • Tools
  • Skills

To manage disputes and disagreements

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6
Q

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

A
  1. Negotiation to find agreeable position (this is not ADR as does not involve a neutral third party)
  2. ADR - Alternative Dispute Resolution (to avoid litigation, which is going through court publicly)
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7
Q

What are the benefits of ADR over litigation?

A
  • Quicker
  • Less formal
  • Cheaper
  • Private
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8
Q

What form has to be completed before proceeding with ADR?

A

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

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9
Q

What is ADR?

A

ADR is used to avoid litigation, it involves appointing:

  • Mediator
  • Arbitrator
  • Independent Expert
  • Arbitrator
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10
Q

What is mediation?

A

Least formal

Role is to facilitate discussion, help parties clarify positions, and support search for solutions

  • Neutral mediator facilitates discussions between two parties to explore a solution
  • Confidential and informal
  • Mediator has no decision-making authority and cannot impose a resolution
  • Both parties can sign document to agree outcome
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11
Q

What is arbitration?

A

Second least formal

  • Based on evidence provided
  • 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
  • Cheaper than IE
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12
Q

What is an Independent Expert?

A

Third least formal - most formal

  • Based on evidence provided
  • They are experts and therefore more expensive / liable for negligence
  • 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
  • More expensive than Arb
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13
Q

When would you use an arbitrator or independent expert?

A
  • Arbitration is a formal process that resolves the entire issue
  • They can only use information provided
  • They ‘award’ a resolution that is legally binding
  • Governed by Arbitration Act (1996)
  • An independent expert is a less formal process that resolves a specific issue of fact
  • May use information beyond what is provided
  • They ‘determine’ a resolution that is legally binding
  • E.g. Contract meaning / valuation issues
  • Not governed
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14
Q

What can a surveyors role in ADR be?

A
  • Expert Witness
  • Advocate
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15
Q

What is the role of an Expert Witness?

A
  • 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
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16
Q

What is the role of an Advocate?

A
  • 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)
17
Q

What is PACT?

A

Professional Arbitration on Court Terms

  • Specific to tenancy renewals under L&T Act (1954)
  • Alternative to dispute resolution via the County Court: dispute resolver can act as an arbitrator or independent expert
  • Used before or after formal lease renewal court proceedings have been issued
  • Joint initiative between RICS and Law Society for disputed rent / non-rent terms
18
Q

What is the RICS Dispute Resolution Service?

A

Oldest and largest provider of ADR services

19
Q

What is the RICS CAP (Conflict Avoidance Process)?

A

Contractual mechanism which helps parties avoid prolonged and damaging disputes

Enables parties to identify and dispose of emerging disputes early on

Method to avoid escalation and formal confrontational procedures (such as adjudication, arbitration or litigation) which are a drain on money and resources

  • Panel of 1-3 impartial professionals who work with the parties / conduct their own enquiries
  • Within timeframes, provide parties with a CAP report containing recommendations for resolutions
20
Q

Name a nominating body or service available to resolve disputes?

A

The RICS

21
Q

Where would you find the mandatory RICS requirements for identifying conflicts of interest?

A

RICS Professional Standard: Conflicts of Interest Global (2017, effective 2018)

22
Q

What is a conflict you might come across at Lendlease?

A
  • Conflict over design / VE being imposed
  • Programme delay
23
Q

Talk me through the CPD you undertook on understanding when dispute resolution procedures should be adopted?

A

Estates Gazette:
- Causes of conflicts and methods to avoid
- When not possible to reach a resolution, ADR should be adopted

Podcast on dealing with COI in Dispute Resolution:
- COI in Dispute Resolution is where an individual is unable to advise a party completely impartially

VT APC (20 decks)

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