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RICS APC - Residential > Conflict Avoidance, Management and Dispute Resolution Procedures - Level 1 > Flashcards

Conflict Avoidance, Management and Dispute Resolution Procedures - Level 1 Flashcards

1
Q

Name some different forms of ADR?

A
  1. Mediation
  2. Conciliation
  3. Negotiation
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2
Q

Name 3 forms of formal dispute resolution

A
  1. Arbitration
  2. Litigation
  3. Ajudication
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3
Q

What would you consider to select a form of dispute resolution?

A
  1. Cost in proportion to the claim
  2. Time scale
  3. Impact on business relationship and reputation
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4
Q

What is conciliation?

A

Dispute resolution similar to mediation.

  1. Independent party to aid an agreement.
  2. Conciliator has no authority to seek evidence or call witnesses.
  3. Conciliator can not make final decision
  4. A conciliator is there to encourage the two sides to come to an agreement between themselves. A mediator will suggest a solution.
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5
Q

What is mediation?

A
  1. Form of ADR
  2. Bringing in a neutral mediator to facilitate discussions between two parties
  3. To guide a decision which optimises the parties needs
  4. Carried out on a ‘without prejudice’ basis
  5. Mediator has no decision making authority
  6. RICS Guidance Note on Mediation 2014
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6
Q

What is the difference between conciliation and mediation?

A

A mediator is a neutral party who help rebuild a relationship and find a mutually agreeable solution. It is non-binding.

Conciliation is the same but different process. A conciliator is a figure of authority who parties turn to for guidance. The parties make the final decision and the conciliator makes suggestions.

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7
Q

What is negotation?

A

Parties come to an agreement through informal private negotiation process.

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8
Q

What is adjudication?

A
  1. UK statutory dispute resolution procedure
  2. Relatively quick process from submission of referral.
  3. Binding until dispute determined by litigation or arbitration.
  4. Seen as simplified arbitration process
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9
Q

Tell me about arbitration

A
  1. An arbitrator is appointed in a quasi-judicial role (administrative) with the Arbitration Act 1996.
  2. Certain conditions must be met; a genuine dispute or difference between parties.
  3. Parties are bound by the decision made
  4. Fast, cost-effective, confidential solution to disputes.
  5. The arbitrator bases his conclusion on the evidence provided by both parties.
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10
Q

Difference between arbitration and litigation

A

LOOK AT THE FERGUS BOOK?!?!?!?!?

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11
Q

What is conflict avoidance?

A
  1. Clear drafting of engagement documents e.g. lease or licence
  2. Carry out risk analysis and understand what could go wrong
  3. Managing expectations requires full understanding of the objectives
  4. Keep good records.
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12
Q

What are the three types of dispute resolution?

A
  1. Negotiation - problem solving between parties
  2. Mediation or conciliation - 3rd intervention which does not bind parties to a decision - guidance
  3. Adjudication process - An outcome is determined by 3rd party e.g. litigation or arbitration
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13
Q

What is ADR?

A

Alternative Dispute Resolution - dispute resolution techniques which processes and techniques which fall outside the scope of court litigation.

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14
Q

What are the advantages of ADR?

A
  1. Speed - take less time then going to court
  2. Cost - less money spent on professional fees
  3. A greater opportunity for negotiation
  4. Confidentiality - wont be publicised
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15
Q

What is an independent expert?

A
  1. Appointed by two parties (or President of RICS if a part of the RICS DRS). Has a duty to investigate the facts and can use their own knowledge.
  2. RICS Guidance Note on Independent Expert Determination 2016
  3. Expert is a specialist in the specific area
  4. Both parties are bound by the decision
  5. This process offers speed and specialist knowledge
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16
Q

What is Early Neutral Evaluation?

A

Use of an independent person, experienced in the subject matter of the dispute, to investigate and give their non-binding opinion

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17
Q

What is the RICS guidance for expert witnesses?

A

RICS Practice Statement ‘Surveyors Acting as an Expert Witness’ 2014

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18
Q

What is an expert witness?

A

An expert who provides evidence to a judicial or quasi-judicial body.

The expert witness’ overriding duty of care is to the court. not the client. but client pays fee.

19
Q

When can a surveyor accept to be an expert witness?

A

When they have the appropriate knowledge, experience, qualifications and training appropriate for the case and no conflicts of interest

20
Q

What was the Gardiner & Theobald Vs Jackson 2018 case?

A

Expert witnesses were reminded that a success-related fee is inappropriate

21
Q

What was the Jones Vs Kaney 2011 case?

A

expert witnesses are not immune from civil action in relation to evidence they provide and they can be sued for negligence.

22
Q

What is ‘Hot Tubbing’ ?

A

‘Hot Tubbing’ is where experts are sworn in to cases alongside each other and are given the chance to ask each other questions.

23
Q

What is the RICS note on Acting as an Advocate?

A

RICS Professional Statement ‘Surveyor Acting as Advocates’ 2017

24
Q

What is an advocate?

A

A surveyor who is appointed to act on behalf of their client at a judicial/tribunal hearing.
You have a duty towards your client, but an overriding duty to the tribunal to act fairly as set out in the professional statement.

25
Q

What is the RICS note on Dispute Resolvers?

A

RICS Guidance Note on Conflicts of Interest for Members acting as Dispute Resolvers 2017

26
Q

What does the RICS Guidance Note on Conflicts of Interest for Members acting as Dispute Resolvers 2017 do?

A

Assists those appointed, by RICS President or directly by parties, to act as a dispute resolver or in day to day matters.

27
Q

What are the key themes of the RICS Guidance Note on Conflicts of Interest for Members acting as Dispute Resolvers 2017?

A

Independence and Impartiality

28
Q

If you had a dispute for service charge how might you resolve it if you had reached an impass?

A

LOOK AT THE DISPUTE RESOLUTION CLAUSE IN THE LEASE!

  1. Mediation
  2. Independent expert
  3. Arbitration
29
Q

At what stage would you go to court?

A

If an arbitrator has made his award and they refuse to pay it.

30
Q

How do you appoint an independent expert?

A
  1. By agreement between parties

2. RICS President appoints an expert - Apply to RICS Dispute Resolution Service

31
Q

What is the fee for an application for RICS DRS?

A

£465

32
Q

If you are acting for a tenant and they ask you to advise on a service charge issue on a building you don’t manage and the landlord is a subsidiary of your biggest client, what would you do?

A

Best to say if conflict of interest then decline instruction, say you are aware of the option of informed consent and the assessor will then ask if you about informed consent if they want

Write to client and notify them that you have discovered the Conflict of Interest. As the landlord is a subsidiary of my biggest client, it would not be appropriate to continue with the appointment and that they should seek alternative advice.

33
Q

Give an example of a conflict

A

.

34
Q

Given an example of where you have avoided disputes

A

Cambridge Gate - concern about reasonableness of reserve fund collection.
Communication and clarity, provided forecast and figures.

35
Q

What are the key principles of the RICS CoI Global Professional Statement?

A

2017 - Mandatory

  1. Provides clear rules for RICS members on identifying and managing potential conflicts of interest
  2. and dealing with conflicts which arise during assignments.
36
Q

What are the key principles for RICS Surveyors Actings as Advocates?

A

Professional Statement - Mandatory

1. sets out the duties of a surveyor-advocate and advises on best practice.

37
Q

What are the key principles for RICS Surveyors Acting as Expert Witnesses?

A

Practice Statement - Mandatory - 4th Editition

Guide for surveyors who provide expert evidence for civil proceedings

38
Q

What is the difference between an independent expert and arbitrator?

A
  1. EVIDENCE - Arb - acts on evidence provided/ IE - Duty to investigate and discover facts/ they can use their own knowledge.
  2. NEGLIGENCE - Arb - not liable for negligence / IE - can be liable for damages if negligent
  3. LAW - Arb - governed by Arbitration Act 1996 / IE - no relevant legislation
39
Q

In a rising and falling market, acting for a landlord, would you use a arbitrator or expert witness?

A

Check the lease to ensure you comply with the dispute resolution clause.

  1. Falling market - use an arbitrator as determination is based on only figures presented.
  2. Rising market - Independent expert as looks at other comparable evidence as determination can be more favourable.
40
Q

What is med-arb dispute procedure?

A

Hybrid process of mediation and arbitration.
- Parties agree to mediate their dispute for a set period of time (e.g. 4 hours) if a settlement is not reached then the mediator will go on to arbitrat the dispute.

41
Q

What is Early Neutral Evaluation?

A
  1. Confidential process conducted on a ‘without prejudice’ basis.
  2. It is non-binding and aims to help clarify and define legal and factual issues in the dispute.
  3. Parties appoint a 3rd party expert to assist.
42
Q

What are the court a dispute would go through, for civil cases?

A

Bottom to top;

  1. County court
  2. High Court
  3. Court of appeal
  4. Supreme court
43
Q

Give examples of disputes that FTT will determine

A
  1. Recoverability of service charge
  2. Reasonableness of service charge
  3. removal of current managing agents
  4. lease variations
  5. dispensation
  6. Determination of a lease extension premium

RICS APC - Residential (22 decks)

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