Conflict Avoidance, Management and Dispute Resolution Flashcards
How might a conflict arise?
Failure to comply with contractual obligations.
If one or more parties had failed to comply with their contractual obligations.
e.g. – instructed consultant and they have not undertaken the work required correctly / or on time.
Have you ever bene involved in a conflict / a situation?
I haven’t been in this situation as I have always clearly, concisely and carefully drafted the contract and associated documents.
How might you avoid a conflict arising in the first place / Conflict Avoidacne?
- Have Clear Contractual Obligations
- Be proactive and have conflict avoidance analysis
- Managing Expectations
- Keeping Good Records
What may a conflict cause?
Failure to avoid conflicts will incur costs in their subsequent management and resolution.
What is Dispute Resolution?
Steps taken to resolve a conflict / dispute between 2 parties.
If you are wanting to try and resolve a dispute what should you do?
There are 3 main process available to solve disputes:
1) Negotiation – Parties involved will work it out – problem solving.
2) Mediation or Reconciliation – Third party intervention which does not bind the parties to a decision but assist the resolution.
3) Adjudicative Process – An outcome is determined by a third party – such as litigation or arbitration – binding parties.
What is litigation?
The process of taking legal action.
What is Alternative Dispute Resolution?
These are dispute resolution processes that fall outside the scope of court litigation.
What are advantages of Alternative Dispute Resolutions?
1) Quicker and less costly
2) Informality – outside a court
3) Negotiation – greater opportunity for negotiation
4) Cost – less money spent on professional fees
5) Quality of decision – as the outcome can be made by a surveyor rather than a judge.
6) Confidentiality - more confidential as not going to court.
What are the various forms of Alternative Dispute Resolution in the UK?
1) Mediation
2) Arbitration
3) Independent Expert Witness
4) Early Neutral Evaluation
5) Acting as Expert Witness
6) Acting as an Advocate
What is Mediation?
A neutral mediator (third party) is used to facilitate a discussion between two parties.
* A confidential and informal process.
* Mediator has decision authority and cannot impose an outcome,
* Usually conducted on a without prejudice basis.
What is Arbitration?
An arbitrator with specialist knowledge is appointed in a quasi-judicial role in accordance with the Arbitration Act 1996.
What is independent expert determination?
An independent witness is appointed by the two parties (or by the president of the RICS if the two parties are using the RICS dispute resolution service
What is early natural evaluation?
Use of an independent person, experienced in the subject matter of the dispute, to investigate and give their non-binding opinion.
Explain what acting as an expert witness is?
When a surveyor provides evidence to a judicial or quasi-judicial body – it is an expert witness.
What must an expert witness provide prior to starting their role?
Statement of Truth and confirmation that they will act impartially and objectively.
What is hot tubbing in the context of dispute resolution?
When Expert Witnesses are sworn in alongside each other and able to ask each other questions.
What does acting as an advocate mean?
- 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.
What form of arbitration is used for leases refuse?
I have had no experience with dispute Leases and would therefore speak to a senior colleague as this is outside my expertise’s.
Where does it stare about a firm requiring a compliant handling procedure, log and RICS approved ADR?
Rule of Conducts 2021
Professional Obligations
Appendix A
What Exams do Surveyors Need to Pass to Become an Arbitrator?
They need to qualify and pass the Chartered Institute for Arbitrators Exams.
What Document Have the RICS Published on Independent Experts?
The RICS Guidance Note on Independent Expert Determination, 2016.
WHAT IS SUBJET TO CONTRACT
PRE CONTRACUTRAL DOCUMENT
WHAT IS WOTUHOUT PREDUJUICE
DOCUMENT / EMQIL CANT BE REFFERED TO IN OCURT
