Conflict Avoidance, Management And Dispute Resolution Flashcards
What are the civil procedure rules?
Rules of civil procedure used by the court of appeal, high court of justice and county courts in civil cases in England and Wales. These would cover professional negligence disputes.
What methods of ADR are there?
Adjudication
Arbitration
Mediation
Negotiation
What is adjudication?
Involves the appointment of an independent adjudicator who considers the evidence and makes a decision which is binding on all parties, used in the construction industry
What is arbitration?
Involves the parties agreeing to refer the dispute to a third party and be bound by the arbitrators decision.
What is mediation?
Involves appointing an independent third party whose role is to help all parties come to an agreement. Voluntary process, all parties have to agree for mediation to go ahead, not legally binding
What is negotiation?
The process of getting parties together with a view to reconcile differences and establish areas of agreement, settlement or compromise
What is the difference between an independent expert and arbitrator?
Independent expert can make their own investigations and use their own knowledge of a subject to help them reach their conclusion, arbitrator reaches their decision based on the information submitted to them by the parties
At VT, how do you distinguish your role of expert witness and advocate?
At VT, any time you are giving your opinion on evidence submitted you are acting as expert witness as you are giving your expert opinion.
Any time you are explaining the basis of the appeal or talking generally about the appeal you are acting as advocate, representing the Valuation Officer
Normally you will state when you are acting as expert witness and when you are acting as advocate.
Is it unusual to act in a dual role as advocate and expert witness?
Not at the VOA as VOs are experts in valuation but also have a duty of care to maintain a fair and accurate rating list.
In private practise, it is difficult to act as both an advocate and expert witness as an advocate would usually be paid depending on the success of their case which may prevent impartiality required from an expert witness.
If you are a private practise agent acting on a no win no fee basis can you still be an expert witness?
RICS Surveyors Acting As Expert Witness prohibits this, but at Valuation Tribunal it is allowed but must be clearly stated.
Are conditional fees an issue at VT?
Not for the VO, agents ethics should prevent it from becoming an issue. VT consider it to allow greater access to appeals but must be announced.
How cam you avoid conflicts?
Keeping good records with sufficient detail. Good management, contract documentation and partnering.
Is there RICS guidance om avoiding conflict?
Yes, Conflict Avoidance and Dispute Resolution April 2012
What are the benefits of ADR?
Speed, informality, costs less, greater opportunity for negotiation
What is an expert witness?
Surveyor is obliged to put forward his opinion
Must not omit any evidence
Must be impartial
Duty is to the court
Contingency fees not allowed except when undertaking a dual role
What is an advocate?
Represents client
Able to put forward arguments and conclusions with which they may not agree
Can you give me an example of when you acted as advocate and expert witness?
In case study. As advocate I set out the points of the appeal, case law, agreed facts, appeal history.
As expert witness I presented evidence and my opinion of the evidence
What is the role of an ombudsman when a complaint is received?
The complaint is handled by an investigation officer who will review the case within 6 weeks of receipt and provide a professional conclusion. They can make financial rewards of up to £25,000.
What is partnering or alliancing?
Parties agree to act in the best interests of the project
What is the RICS Conflict Avoidance Pledge?
Initiated by several leading professional bodies,signing up to the pledge indicates a level of professionalism.
Pledge states we believe in collaborative working, proactively avoiding conflict.
What is a Dispute Adjudication Board?
Set up at the start of projects, used to help parties overcome disputes during the project.
What is the significance of the Construction Act 1996 in terms of ADR?
Introduced the automatic right to refer disputes to an adjudicator
Which adjudication services does RICS offer?
Commercial:
Construction Adjudication
Low Value Adjudication
Summary Adjudication
Consumer:
Homeowner Adjudication
Advantages of mediation
Quick, flexible, attempts to preserve the relationship.
Disadvantages of mediation
Not compulsory, if a party is unwilling to co operate it is a waste or time, effort and money
Advantages of arbitration
Time to present evidence, arbitrators decision is final and legally binding - good for a complex case where relationships have broken down
Disadvantages of arbitration
More formal evidence required which can result in costs being higher and it taking longer
Advantages of ajudication
Less expensive than arbitration as quicker with less formal evidence required. Adjudication is unique to the construction industry and is designed to resolve disputes quickly and efficiently.
Decision made by adjudicator is only temporarily binding, so parties can pursue the distance further if they are not satisfied.
Disadvantages of adjudication
Generally cannot recover the costs of adjudication from your opponent if successful, in arbitration costs may be recoverable from the other party
What legal framework does adjudication/arbitration operate in?
Adjudication is typically governed by Construction Act 1996
Arbitration is governed by the Arbitration Act 1996
