Conflict Avoidance, Management and Dispute Resolution Flashcards
Why do conflicts arise (dispute)?
Failure to comply with contractual obligation / arrangement i.e. lease
What is the hierarchy of conflict avoidance?
- Avoidance (try to avoid / reduce likelihood from the outset)
- Management
- Resolution
How do you avoid conflict (dispute) from the outset of an instruction?
- Proactive - what could go wrong?
- Clear communication
- Transparent negotiations
- Keep records with sufficient levels of detail
What are the 3 main processes in resolving disputes?
- 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)
What are the benefits of alternative dispute resolution (outside scope of court litigation)?
- speed (less time consuming)
- Informality (outside of court)
- Greater opportunity for negotiation
- Cost’s less as no professional fees for litigation
What is litigation?
Process of taking legal action.
What are forms of ADR?
Arbitration, mediation
What is ADR?
Alternative Dispute Resolution
(settling complaint out of court with the assistance of an impartial dispute resolution body)
What are the forms of ADR?
- Mediation
- Arbitration
- Conciliation
What is dispute resolution?
Actions to resolve contractual disagreements between parties.
What are the three formal forms of dispute resolution?
Arbitration
Litigation
Adjudication
What would you consider to select a form of dispute resolution?
- The cost in proportion to the claim
- The timescales involved
- The impact on business relationships and reputation
What is mediation?
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.
What are the benefits of proceeding via Mediation?
- Confidential
- Informal process
Is the mediator able to make any decisions?
No and they cannot impose a resolution on 2 parties.
What is arbitration?
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.
What is the process of arbitration?
Arbitrators can order a hearing or consider written representations.
The arbitrators deliberate the facts of the case provide a written decision called an award.
What is PACT?
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.
What is the benefit of arbitration?
- Fast
- Cost effective
- Confidential solution
Can a arbitrator be sued for negligence?
No
Who is an arbitrator?
- 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
What is conciliation?
An Independent 3rd party is brought in to provide advice and possible solutions for parties to consider.
Dispute resolution similar to mediation.
What is the key difference between mediation and conciliation?
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.
What is negotiation?
Negotiation is a dialogue between two or more parties to resolve points of difference and agree to settle the dispute.
What is your most successful negotiation?
FHC, FS
What is an Independent Expert determination?
- 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
What are the benefits of independent Expert determination?
- speedy process
- specialist knowledge
What is adjudication?
Disputes arising under construction contracts, usually within a 28 day timeframe.
- determined by an RICS adjudicator (years of experience in industry)
What is early neutral evaluation?
Independent person experienced in subject matter to investigate and give their non binding opinion.
What is an expert witness?
- 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)
Can an expert witness be sued for negligence?
Yes
Is there any contingency fee for an expert witness if they win?
No incentive for success
What is an advocate?
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)
List the RICS documentation on complaints handling procedures and dispute?
- 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
What are the key points from the RICS Conflicts of Interests Guidance Note for members acting as dispute resolvers, 2017?
Every dispute resolver is to be impartial on accepting instruction and throughout.
Key themes - Independency and impartiality.
What is the process of litigation?
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.
What are the 3 types of arbitration?
- short hearing (1 month)
- documents only (1 month)
- full procedure (long).
