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RICS APC > Conflict Avoidance, Management and Dispute Resolution > Flashcards

Conflict Avoidance, Management and Dispute Resolution Flashcards

1
Q

Why do conflicts arise (dispute)?

A

Failure to comply with contractual obligation / arrangement i.e. lease

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2
Q

What is the hierarchy of conflict avoidance?

A
  • Avoidance (try to avoid / reduce likelihood from the outset)
  • Management
  • Resolution
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3
Q

How do you avoid conflict (dispute) from the outset of an instruction?

A
  • Proactive - what could go wrong?
  • Clear communication
  • Transparent negotiations
  • Keep records with sufficient levels of detail
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4
Q

What are the 3 main processes in resolving disputes?

A
  • Negotiation (parties resolve themselves)
  • Mediation or conciliation (3rd party intervention - does not bind parties to decision)
  • Adjudicative process (Outcome determined by 3rd party - litigation, arbitration)
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5
Q

What are the benefits of alternative dispute resolution (outside scope of court litigation)?

A
  • speed (less time consuming)
  • Informality (outside of court)
  • Greater opportunity for negotiation
  • Cost’s less as no professional fees for litigation
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6
Q

What is litigation?

A

Process of taking legal action.

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7
Q

What are forms of ADR?

A

Arbitration, mediation

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8
Q

What is ADR?

A

Alternative Dispute Resolution

(settling complaint out of court with the assistance of an impartial dispute resolution body)

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9
Q

What are the forms of ADR?

A
  • Mediation
  • Arbitration
  • Conciliation
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10
Q

What is dispute resolution?

A

Actions to resolve contractual disagreements between parties.

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11
Q

What are the three formal forms of dispute resolution?

A

Arbitration
Litigation
Adjudication

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12
Q

What would you consider to select a form of dispute resolution?

A
  • The cost in proportion to the claim
  • The timescales involved
  • The impact on business relationships and reputation
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13
Q

What is mediation?

A

When a mediator (separate impartial 3rd party) is brought into facilitate discussions between the 2 parties

Mediation encourages coming together and agreeing.

It is non binding and parties can revert to arbitration or
litigation at any time.

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14
Q

What are the benefits of proceeding via Mediation?

A
  • Confidential
  • Informal process
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15
Q

Is the mediator able to make any decisions?

A

No and they cannot impose a resolution on 2 parties.

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16
Q

What is arbitration?

A

Procedure for the resolution of disputes under the control of the parties

Arbitration is a procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision on the dispute.

17
Q

What is the process of arbitration?

A

Arbitrators can order a hearing or consider written representations.

The arbitrators deliberate the facts of the case provide a written decision called an award.

18
Q

What is PACT?

A

Professional Arbitration on Court Terms (PACT)

  • scheme offered by RICS and the Law Society as a form of
    alternative dispute resolution (ADR) for lease renewal disputes.
  • quick, efficient and cost effective solution.
19
Q

What is the benefit of arbitration?

A
  • Fast
  • Cost effective
  • Confidential solution
20
Q

Can a arbitrator be sued for negligence?

A

No

21
Q

Who is an arbitrator?

A
  • The arbitrator plays the role of a neutral person
  • Has specialist knowledge of subject area
  • Surveyors can act if they have passed Chartered Institute of Arbitrators exams
22
Q

What is conciliation?

A

An Independent 3rd party is brought in to provide advice and possible solutions for parties to consider.

Dispute resolution similar to mediation.

23
Q

What is the key difference between mediation and conciliation?

A

Mediation - Help facilitate the discussion and help parties to work out a solution that is mutually agreeable.

Conciliation - conciliator is usually a figure of authority that the parties have turned to for guidance. They provide advice and possible solutions for parties to consider and make final decision.

24
Q

What is negotiation?

A

Negotiation is a dialogue between two or more parties to resolve points of difference and agree to settle the dispute.

25
Q

What is your most successful negotiation?

A

FHC, FS

26
Q

What is an Independent Expert determination?

A
  • surveyor appointed either by the President of RICS or by the agreement of both parties
  • receive evidence from both parties and use their own knowledge / expertise to decide an award.
  • Both parties are bound by the decision
27
Q

What are the benefits of independent Expert determination?

A
  • speedy process
  • specialist knowledge
28
Q

What is adjudication?

A

Disputes arising under construction contracts, usually within a 28 day timeframe.

  • determined by an RICS adjudicator (years of experience in industry)
29
Q

What is early neutral evaluation?

A

Independent person experienced in subject matter to investigate and give their non binding opinion.

30
Q

What is an expert witness?

A
  • When a surveyor provides evidence to a Judicial or Quasi-judicial body.
  • Duty of care to the court
  • Only accept instruction if have knowledge, qualified, experienced and training for instruction (with no conflict)
31
Q

Can an expert witness be sued for negligence?

A

Yes

32
Q

Is there any contingency fee for an expert witness if they win?

A

No incentive for success

33
Q

What is an advocate?

A

Professional field

Surveyor acting as an advocate for their client in a judicial hearing

Duty to client (overriding duty to
the tribunal to act properly and fairly)

34
Q

List the RICS documentation on complaints handling procedures and dispute?

A
  • RICS Guidance Note: Complaints handling 2016
  • RICS Guidance Note: Mediation, 2014

-RICS Guidance Note: Independent expert
determination, 2016

-RICS practice
statement and Guidance Note: Surveyors acting as expert witnesses, 2023

  • RICS Professional Statement and Guidance Note: Surveyors acting as advocates, 2017
  • RICS Guidance Note: Conflicts of Interest for Members Acting as Dispute Resolvers, 2nd edition, 2023
35
Q

What are the key points from the RICS Conflicts of Interests Guidance Note for members acting as dispute resolvers, 2017?

A

Every dispute resolver is to be impartial on accepting instruction and throughout.

Key themes - Independency and impartiality.

36
Q

What is the process of litigation?

A

Presentation of arguments in court.
Public process following Civil Procedure Rules

Advantages: Parties do not pay for court or judge, process can deal with multi-party
disputes, civil procedure rules aim for accessibility, speed and efficiency.

37
Q

What are the 3 types of arbitration?

A
  1. short hearing (1 month)
  2. documents only (1 month)
  3. full procedure (long).

RICS APC (22 decks)

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