Conflict Avoidance, Management and Dispute Resolution

Question 1

How Might You Avoid a Conflict Arising in The First Place?

Answer 1

• Clear Contractual Obligations
• Proactive Conflict avoidance analysis
• Negotiating contractual obligations carefully and transparently.
• Keeping Good Records

Question 2

What are the Three Main Process Available to Solve Disputes?

Answer 2

• Negotiation (Parties involved working it out)
• Mediation / Reconciliation (Third party intervention that doesn’t bind parties to a decision but assists the resolution)
• Adjudicative Process: An Outcome is determined by a third party, such as litigation or arbitration.

Question 3

What is Alternative Dispute Resolution (ADR)

Answer 3

• Dispute resolution processes that fall outside the scope of the court, they are used because they are quicker and less costly, and the outcome may be better informed (decided by a surveyor not judge).

Question 4

Advantages of ADR?

Answer 4

• Speed
• Informality
• Greater opportunity for negotiation
• Cost
• Quality of decision making – award made by surveyor rather than judge
• Confidentiality

Question 5

Can You Give Some Examples of ADR Mechanisms?

Answer 5

Mediation (RICS Guidance Note on Mediation 2014) – A neutral mediator is used to facilitate discussion between two parties. Mediator has no decision authority, and cannot impose an outcome.

Arbitration - An Arbitrator with specialist knowledge is appointed under the Arbitration Act 1996. Parties are bound by the decision. The Arbitrator Cannot be sued for Negligence. Their decision can be overruled by the Court of Appeal. Surveyors have to pass to Chartered Institute of Arbitrators Exams.

Independent Expert An independent witness is appointed by the two parties (or by president of the RICS if the two parties are using the RICS Dispute Resolution Service). They will have expert knowledge on the subject matter. Both Parties are bound by the decision. There is an RICS Panel of Independent Experts. RICS Guidance Note on Independent Expert Determination, 2016

Question 6

What Exams do Surveyors Need to Pass to Become An Arbitrator?

Answer 6

• They need to qualify and pass the Chartered Institute for Arbitrators Exams.

Question 7

Can you list the main differences between an Independent Expert and an Arbitrator in Rent Review Disputes?

Question 8

What form of Arbitration is Used for Lease Renewal Disputes?

Answer 8

PACT (Professional Arbitration on Court Terms).

Question 9

What Document Have the RICS Published on Independent Experts?

Answer 9

The RICS Guidance Note on Independent Expert Determination, 2016.

Question 10

What could compromise an independent expert’s impartiality?

Answer 10

Existing clients / Prospect of future work, acting as an agent for them previously, personal relationship

Question 11

What Document Have the RICS Published on Surveyors Acting as Expert Witnesses? And what is important to consider when acting in such a way?

Answer 11

Surveyors Acting as Expert Witnesses (2014) – the primary duty of care is to the Court or other dispute resolution panel, not to the Client, even though the client pays your fee. Incentive fees are therefore not appropriate for a surveyor acting as an expert witness.

Question 12

What are the four key messages from “Surveyors Acting as Expert Witnesses (2014)”

Answer 12

• Evidence provided must be seen to be impartial and objective
• Duty of the surveyor is to court, and should override any obligation to the client
• The evidence must come from the independent work of the surveyor.
• The surveyor must believe that the facts they rely on are true and correct.

Question 13

What must an Expert Witness Provide Prior to Starting Their Role?

Answer 13

A Statement of Truth and confirmation that they will act impartially and objectively.

Question 14

Are incentive Fees allowed when acting as an Expert Witness?

Answer 14

No, they aren’t allowed following Gardiner & Theobald v Jackson (2018).

Question 15

What does the RICS document ‘Practice Statement: Surveyors acting as Expert Witnesses” state?

Answer 15

“Must be seen to be giving your independent and unbiased product and fall within your expertise, experience and knowledge.”

Question 16

What is Hot-Tubbing in the context of Dispute Resolution?

Answer 16

When Expert Witnesses are sworn in alongside each other and able to ask each other questions.

Question 17

What Does it Mean for a Surveyor to Act as an Advocate?

Answer 17

It means that they are representing their client at a dispute resolution hearing or court hearing. Here they have a duty solely to the client, but are obliged to ensure that the integrity of the court and judicial process is respected. RICS Guidance Note: “Surveyors Acting as Advocates (2017)”.

Question 18

What are the Key Themes of the RICS Guidance Note, Conflicts of Interest for Members Acting as Dispute Resolvers (2017)

Answer 18

• Integrity and Impartiality. The dispute resolver should be impartial at the time of accepting the appointment and remain so during the entire proceedings.
• Also comments on day to day conflict management

Question 19

What are the key messages from RICS Guidance Note Complaints Handling (2016)?

Answer 19

• Terms of business are important, because complaints often arise when expectations have not been met. Expectations are set in Terms of Engagement.
• CHP’s have to be relevant to the scope of the service offered.
• Know your PII policy, and inform you insurer as soon as a complaint arises.
• Take care not to arbitrarily admit fault or liability in the first instance of a complaint being received.
• Identify Training needs from complaints.

Question 20

What are information barriers?

Answer 20

Procedures put in place to ensure a firm can manage a potential conflict. This could be ensuring a clean desk, physical separation of surveyors, password protected files, separate support staff.

Question 21

What is included in an instruction letter?

Answer 21

Duties of an expert, context, legal framework, case law, the opponent’s case.

Question 22

In a rising market is it preferable to have an independent expert appointed or an arbitrator appointed for a landlord?

Answer 22

An Independent Expert would be preferable as they consider market evidence and do their own investigations. More likely to award a higher rent, than if they were to consider the evidence provided by both parties only as an arbitrator would.

Question 23

What is the RICS Professional Statement on Conflicts of Interest (2017)?

Answer 23

A professional statement on CoI and confidentiality sets out mandatory rules in this area. Contains definitions used in the professional statement. Provides guidance on how members and firms can meet the obligations sets out.