Conflict Avoidance, Management and Dispute Resolution Procedures

Question 1

How do you avoid conflict?

Answer 1

Clear, concise drafting of contracts or leases and documentation.
Managing the expectations of all parties and understanding their objectives.
Proactive conflict avoidance risk analysis by understanding what could go wrong
Keep good records with details.

Question 2

What are the main processes for resolving disputes?

Answer 2

1. Negotiation - the problem solving of the parties themselves.
2. Mediation or conciliation - 3rd party intervention to assist in resolving difficulties. Non binding.
3. Adjudicative process - an outcome decided by a 3rd party such as litigation and arbitration.

Question 3

What are the benefits of ADR?

Answer 3

Speed.
Cost
Quality of decision making - made by an expert rather than judge.
Opportunity for negotiation
Confidential

Question 4

What are the forms of ADR?

Answer 4

Mediation - Neutral who facilitates discussions between parties
Arbitration - Parties bound by decision of a specialist. More formal
Independent Expert determination - Expert appointed by both parties. Investigates dispute, receives evidence to make decision.

Question 5

What is included in the RICS Practice Statement and Guidance Note Surveyors Acting as an Expert Witness 2014?

Answer 5

Witness primary duty of care is to the court.
Surveyor should only act as expert witness if they have appropriate knowledge and training and no conflicts
Must provide a statement of truth.
No fees
Can be sued for negligence

Question 6

What is included in the RICS guidance for acting as advocate?

Answer 6

Acting for a client and represents their client.
Must act with integrity to judicial process
Must be competent

Question 7

What are themes of the RICS Guidance Note Conflict of Interest for Members acting as Dispute Resolvers?

Answer 7

Every dispute resolver should be impartial and independent.