Conflict Avoidance, Management And Dispute Resolutions Procedures - Summary Of Experience. Flashcards
What are the RICS documents in relation to Conflict Avoidance and Management?
- RICS Guidance Note on Mediation 2014 - Relates to mediation as a form of ADR & mediator that facilitates discussions between two parties.
- RICS Guidance Note on Independent Expert Determination 2016 - Relates to guidance for surveyors acting as independent experts in dispute resolution proceedings.
- RICS Practice Statement: Surveyors acting as Expert Witnesses 4th edition, 2014 - Mandatory requirements and guidance for surveyors acting as expert witnesses.
- RICS Professional Statement: Surveyors Acting as Advocates, 2017 - Mandatory requirements for surveyors acting as advocates in court/tribunal/hearing .
- RICS Guidance Note: Conflicts of Interest for Members Acting as Dispute Resolvers, 2nd Edition, 2020 - To assist those appointed by the PRICS or by the parties to assist with dispute resolution. Main themes are independence and impartiality.
What is included in the Conflicts of Interest Professional Statement? (2017)
This is a mandatory standard that came into effect on 1 January 2018 and states that Members must not advise or represent a client where doing so would involve a conflict of interest or a significant risk of a conflict of interest.
Informed consent may only be sought where the RICS member or regulated firm is satisfied that proceeding despite a conflict of interest is in the interests of all of those who are or may be affected and is not prohibited by law.
How might you avoid a conflict arising in the first place?
- Clear Contractual Obligations
- Proactive Conflict Avoidance Analysis
- Managing Expectations
- Keeping Good and Clear Records.
What are the main alternative dispute resolution methods?
1) Arbitration - specialist knowledge of the situation and if appointed by the RICS Dispute Resolution Service, will be highly trained.
2) Independent Expert Determination - under a duty to make their own investigations.
3) PACT (Professional Arbitration on Court Terms - a form of ADR specific to business tenancy renewals under the LTA 1954.
4) Mediation - This involves the use of a neutral mediator who facilitates discussions between the two parties.
What are the differences between an independent expert vs arbitration?
An Arbitrator acts on evidence submitted by both parties whereas an Independent Expert does their own investigation and uses their own knowledge to make the decision.
In a rising market is it preferable to have an independent expert appointed or an arbitrator appointed for a landlord?
An Independent Expert - Is preferable as they consider market evidence and do their own investigations. They are therefore more likely to award a higher rent.
What does it mean when a Surveyor acts as a Client Advocate? Who do they owe a duty of care to? What has the RICS published on this?
A surveyor acts as a client advocate in court, arbitration or in independent expert hearings where they present evidence on behalf of their client.
They have a duty of care to their client.
RICS published a Professional Statement : “Surveyors Acting as Advocates (2017)”
What are the key messages in RICS Guidance Note Complaints Handling (2016)
1) Complaints often arise when expectations have not been met.
2) CHP’s have to be relevant.
3) Know your PII Policy
4) Identify training needs from complaints.
What are the THREE main processes available to solve disputes?
1) Negotiation (Parties involved working it out)
2) Mediation / Reconciliation (Third Party intervention that doesn’t bind parties to a decision but assists the resolution)
3) Adjunctive Process (An outcome is determined by a third party, such as litigation or arbitration)
Describe what you know about Mediation?
A mediator is a neutral professional that is used to facilitate discussion between two parties. Mediator has no decision authority and cannot impose an outcome.
Describe what you know about Arbitration?
Arbitration is when 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 but their decision can be overruled by the Court of Appellate.
What do you know about an Independent Expert?
An independent witness is appointed by the two parties (or by the president of the RICS, if the 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.
What is Alternative Dispute Resolution (ADR)
A dispute resolution process that falls outside the scope of the court, they are used because they are quicker and less costly.
The outcome may be better informed (decided by a surveyor not a judge)
What exams do surveyors need to pass to become an arbitrator?
Chartered Institute for Arbitrators Exams
What are the advantages for Alternative Dispute Resolution procedures?
Speed - taking less time than lengthy court proceedings.
Informality
A greater opportunity for negotiation.
Cost - less money spent on professional fees for litigation.
Quality of decision making
Confidentiality
Tell me what you know about acting as an expert witness?
When a surveyor provides evidence to a judicial or quasi-judicial body, it is as an expert witness.
The expert witness’s primary and overriding duty of care is to the court or other dispute resolution panel and not to the client, even though the client pays the fee.
A surveyor should only accept instructions to act as an expert witness if they have the knowledge,experience, qualifications and training appropriate for the instruction & have no conflicts.
All members and firms should take note of the mandatory RICS Professional Guidance, Surveyors Acting as Expert Witnesses (4th Edition, February 2023)
Tell me what your know about Acting As An Advocate?
A surveyor acting for a client as an advocate, represents their client at a judicial hearing / tribunal.
They must have a duty solely to the instructing client.
They must act in a way to maintain the integrity of the judicial process
They must be competent to act in this advocacy role.
The RICS published a Professional Statement ‘Surveyors Acting as Advocates, 2017.
What is the role of the RICS Dispute Resolution Service?
The RICS DRS provides impartial, professional solutions for resolving disputes in the built environment. These services are known as alternative dispute resolution (ADR) methods, which help parties resolve issues efficiently, cost-effectively and without the need for lengthy litigation in court.
What is a Calderbank Offer?
A Calderbank offer is written ‘without prejudice save as to costs.’ Its effect is that the court is unable to refer to the offer except when dealing with the question of costs at the end of the proceedings.
A Calderbank offer provides greater flexibility than a Part 36 offer because it is not governed by strict court rules.
If a Calderbank is accepted, it creates a binding contract between the parties.
What is a Part 36 offer?
A Part 36 offer is an offer to resolve a dispute and can be made at any stage in a dispute up o the beginning of a trail, including when proceedings have yet to be issued.
A Part offer must;
- be in writing
- specify a period of no less than 21 days.
- state whether it relates to the whole of the claim or part of the claim.
The main attraction is that the set regime in Part 36 provides far more certainty as to how litigation costs will be treated.
