Conflict avoidance, management and dispute resolution procedures Flashcards
- What is the first step to take to avoid ADR?
conflict avoidance- careful drafting of lease or contracts
- proactive conflict avaoidanec - seeing where conflicts may arise
managing expectations - TOE
keeping good records
What is ADR
ways of resolving a dispute without having to go to court. There are many different forms of ADR, but the one thing they have in common is that they all have the potential to resolve a dispute without any court involvement. This is why it is referred to as ‘alternative’ – it’s an alternative to litigation (settling in a court of law).
- What is mediation?
- neutral mediator who facilitates discoussion between two parties
- confidential, informal
‘without prejudice’ basis - nmediator has no decision making authorityand cannot impose resolution
- What are the common methods of dispute resolution in the leases you manage?
- Mediation (CEDR)
- Independent Expert determination (rent review clause)
what is arbitration?
Arbitration is a form of alternative dispute resolution where both disputing parties agree for a decision to be made by an independent arbitrator (or a panel of arbitrators). The process is formal, similar to court proceedings – but, unlike open court, it is private and confidential.
Arbitration Act 1996
Arbitrator has specialist knowledge, esp if appointed by RICS Dispute Resolution Service
The arbitrator will usually be an expert in the subject of the dispute. The parties put forward their case to the arbitrator, who will assess the evidence and decide which party’s case was most persuasive. The arbitrator’s decision (called an award) is final and legally binding. This means that if a party doesn’t like the arbitrator’s findings, it is not possible for them to try and get a better outcome by taking the case to court.
Arbitration can be a quicker and more cost-effective solution than going to court.
LEGALLY BINDING
cannot be sued for negligence
- What is an independent expert?
Independent expert determination
- appointed by agreement of parties
- specialist knowledge of area (esp. if RICS Dispute Resolution service)
- fast, cost effective and confidential
- common for rent review disputes
can be sued for negligence
- What is a expert witness and what is their role?
- surveyor can act in front of tribunal
appointed to present evidence to dispute resolver
RICS Practice statement 2014 for surveyors acting as expert witnesses (to be upateD) - duty is to tribunal, not party who appointed them
- must have knowledge, experience and qualifications appropriate.
- evidence must be independent, unbiased , truthful
- Are you aware of any RICS services in relation to dispute resolution?
The RICS Dispute Resolution Service (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.
With an experienced panel of professionals, RICS DRS ensures fair, timely, and confidential resolutions across our range of services, which you can explore below.
What is the difference between conflict avoidance and conflict management?
conflict avoindance before conflict occurs, management is after
What are the most common causes of conflict in the real estate or construction sectors?
- Can you describe the key methods of avoiding disputes in professional practice?
Adjudication - most common in construction
Mediation,
Arbitration,
independent expert witness
- What are the main methods of dispute resolution in the property and construction industries?
aside from litigation/ court:
Adjudication - most common in construction
Mediation,
Arbitration,
independent expert witness
- What is mediation, and when might it be used in resolving disputes?
netural mediator who has no binding power - confidential informal and quick and cost effective
- useful when parties want long term relationship
- How does arbitration differ from litigation, and what are the benefits of each?
similar but is cheaper - arbitrator has specialist knowledge and determines based on evidence
court judge is not specialist
- What is adjudication, and in what situations is it commonly used?
The aim of adjudication is to resolve the dispute quickly, fairly and cost-effectively. The Construction Act outlines a 28-day procedure for adjudication, although this can be extended for another 14 days with the agreement of the party that started the procedure, and even longer if both parties agree.
RICS adjudicators are experts in their field, with many years of experience in the construction industry. Opting for adjudication ensures the parties use a knowledgeable professional to resolve their dispute. The adjudicator understands the technical issues relating to construction. They will evaluate the evidence submitted by each party and will reach a decision based on the facts of the case. The adjudicator’s decision is binding, although it can be overturned later by a court or by arbitration.
The parties to a dispute can agree who their adjudicator will be. If they can’t agree, one of the parties can apply to an Adjudicator Nomination Body (ANB) to appoint one for them. RICS is the UK’s leading ANB, and is such a popular choice because its adjudicators are experts in the issue the parties are arguing about. They are also regularly reassessed by RICS to ensure they maintain their high levels of expertise.
- What role does negotiation play in avoiding or resolving disputes?
important to avoid disputes by win win solutions
- Can you explain the concept of Alternative Dispute Resolution (ADR) and its importance?
service for resolving disputes outside of court i.e. litigation - imporant to avoid costly court proceedings and maintain business relationships
- What are the roles of a chartered surveyor in conflict avoidance and dispute resolution?
- What are theories of negotiation?
- What are common causes of disputes?
difference in understanding of obligations
- What are dispute resolution methods allowed for in leases that you managed?
ADR - mediation
advocate vs expert witness
Difference between expert witness and an advocate - both fulfilled in court or arbitration
expert witness paid by client - duty to provide all info honest and truthful way to court;
Advocate must be honest and truthful but not comprehensive
