Conflict avoidance, management and dispute resolution Flashcards
Why do conflicts arise?
Failure to comply with contractual obligations
Differing interpretations of a contract
Negligence
What is the most important RICS guidance for those acting as dispute resolvers?
Conflicts of Interest for Members acting as Dispute Resolvers 2020
Must be impartial during entire process
How can conflict be avoided?
Thorough clear, careful and transparent drafting of contracts
Risk analysis understanding what could go wrong/what misinterpretation could arise
Managing expectations and communicating clearly
Keeping detailed records
Not having an adversarial approach
What are the three main dispute resolution processes?
Negotiation - between parties themselves
Mediation - third party assistance
Adjudication - third party determination
Advantages of ADR
Speed
Informality
Greater opportunity for negotiation
Less costly
Quality of the decision making as can be made by a surveyor rather than judge
Confidentiality
Which is the most commonly used service for commercial disputes?
RICS Dispute Resolution Service
What is mediation?
A neutral mediator facilitates discussions between the two parties to try and find a solution
Appointed by the two parties or can ask the RICS to appoint
Confidential and informal
Usually on a without prejudice basis (speak freely without being used in court later)
What is arbitration?
A quasi-judicial role in accordance with the Arbitration Act 1996
If parties can decide who to appoint they can pay the RICS to
Parties are bound by the decision
Have specialist knowledge of the area and have to pass an exam to become one
Consider the evidence put forward by both parties
Cannot be sued for negligence
What is Independent Expert Determination
Appointed by the two parties or RICS
Has subject matter expertise
Both parities bound by the decision
Expert investigates themselves and also receives evidence from the parties
Process offers speed
Arbitrator vs Independent Expert
Arbitration is part of common law where independent expert is just within the RICS
Arbitrator will only look at evidence put to them but an independent expert can do their own research
Arbitration longer and more expensive
Arbitration is better when there are more complex legal issues
Expert determination better when there is a single issue
What is an expert witness
When a surveyor provides evidence to a judicial body
There is a mandatory RICS practice statement Surveyors acting as expert witnesses 2014
Duty of care is to the court or dispute resolution panel
Must have necessary expertise and no conflicts
What is an advocate?
Represent their client at a judicial hearing/tribunal and duty is solely to the instructing client
Must act in a way to maintain integrity of the judicial process
What did your CPD session say about the use of adversarial language and approaches?
That there is a history of this particularly in the construction industry that contractors price low and then find a way to make it profitable leading to competing interests at the outset and needing to win over the other party to make the job work
In this climate with rising build costs a lot of contractors will be feeling the burden and developers maybe ‘winning’ as it is seen
What else did you learn in your CPD session?
It discussed a case study about TfL and their development partners using the RICS Conflict Avoidance Process which goes from the initial contract stage and throughout with a panel of experts making non binding recommendations from a legal and commercial viewpoint as issues arise
