Conflict avoidance, management, and dispute resolution procedures

Question 1

What are some reasons that conflicts may occur?

Answer 1

Conflicts can occur due to failure to comply with contractual obligations, due to differing interpretations of the contract.
Common in construction, but also common with leases.

Question 2

Why is it important to seek to avoid conflict?

Answer 2

So that you/ your clients don’t incur costs for subsequent management and resolution procedures

Question 3

What method of conflict avoidance are there?

Answer 3

1) careful, clear and concise drafting of the contract/lease and associated documentation
2) Risk analysis to identify where conflicts may arise and how to mitigate them
3) Managing parties expectations and understanding their objectives
4) Clear communication
5) implementing early warning systems/ appropriate notices
6) keeping good records with sufficient level of detail.

Question 4

what are the 3 main processess available in resolving disputes?

Answer 4

1) Negotiation
2) Mediation or conciliation
3) Adjudicative process

Question 5

What is negotiation in dispute resolution?

Answer 5

Problem solving between the concerned parties.

Question 6

What is Mediation or conciliation in dispute resolution?

Answer 6

A third party intervention which does not bind the parties to a decision but assists them to resolve difficulties

Question 7

What is adjudicative process in dispute resolutions?

Answer 7

An outcome determine by a third party, such as litigation and arbitration.

Question 8

What is Alternative Dispute Resolution (ADR)?

Answer 8

These are dispute resolution processes and techniques that fall outside the scope of court litigation.

Question 9

What are the advantages of adopting ADRs?

Answer 9

1) Speed (can be quicker than court proceedings)
2) Cost (Less money spent on professional fees
3) Confidentiality
4) Greater opportunity for negotiation

Question 10

Examples of different forms of ADR

Answer 10

Mediation
Arbitration
Independent expert determination
Early neutral evaluation

Question 11

What is Mediation?

Answer 11

This involves a neutral mediator who facilitates discussions between the two parties to explore a solution.
It is confidential and informal process
Conducted ‘without prejudice’
Mediator has no decision making authority.
RICS guidance note - Mediation, 2014

Question 12

What is the RICS guidance note for Mediation

Answer 12

Mediation, 2014

Question 13

What is Arbitration?

Answer 13

Involves an arbitrator, appointed in a quasi-judicial role, in accordance with the Arbitration act 1996, whose decision is binding.
Can order a hearing or consider written representations
They will have specialist knowledge on the subject matter
They cannot be sued for negligence, unless by the law.

Question 14

What is Independent Expert determination?

Answer 14

They are appointed by the two parties.
Have expert knowledge on the subject matter
Parties bound by decision
They are appointed to investigate the deispute and receive evidence from both parties.
Can also offer their own opinion or evidence to decide upon award

Question 15

What is the RICS guidance on Independent expert?

Answer 15

Independent expert determination, 2016

Question 16

What is the difference between Arbitration and Independent Expert?

Answer 16

Arbitrators may only use the evidence provided by both parties. Whereas an expert may use own knowledge and evidence.

Question 17

What is Early Neutral Evaluation?

Answer 17

the use of an independent person, experienced in the subject matter of the dispute, to investigate and give their non binding opinion.

Question 18

Acting as an expert Witness

Question 19

Acting as an Advocate

Question 20

What RICS guidance is there for acting as a Dispute Resolver, and what are the key principles within it?

Answer 20

RICS Guidance Note - Conflicts of Interest for Members acting as Dispute Resolvers, 2017.

• Key principle is that every resolver should be seen to be impartial at time of accepting role and throughout proceedings.
  -Key themes of Independence and impartiality.