Conflict avoidance, management and dispute resolution procedures Flashcards
What can you do to try and avoid conflict (CD, U, M PE, N, KGR)?
- Clear, concise and careful drafting of the contract or lease and associated documentation
- Understanding what could go wrong or how misinterpretation between parties might arise
- Managing all parties’ expectations by understanding their objectives and clearly communicating these, as well as implementing ‘early warning systems’, including serving of appropriate notices
- Negotiating contractual obligation carefully and transparently will help to avoid later conflict or at least enable their efficient resolution
- Keeping good records with a sufficient level of detail can often help to resolve conflicts before they escalate
What are the THREE main processes available in resolving disputes (N, M, A)?
- Negotiation: problem-solving efforts of the parties themselves
- Mediation or conciliation: third party intervention which does not bind the parties to a decision but assists them to resolve difficulties
- Adjudicative processes: an outcome determined by a third party, such as litigation or arbitration
What are the advantages of Alternative Dispute Resolution (ADR) (S, I, NO, C, Q, C)?
- Speed – takes less time than lengthy court proceedings following the Civil Procedure Rules
- Informality – outside a court
- Greater opportunity for negotiation
- Cost – less money spent on professional fees for litigation
- Quality of decision making – as outcome or award can be made by a surveyor rather than a judge
- Confidentiality
What is mediation (N, C/I, WP, powers, RICS guidance)?
- Neutral mediator who facilitates discussions between the two parties to explore whether a solution can be found
- A confidential and informal process
- Mediation is usually conducted on a ‘without prejudice’ basis
- Mediator has no decision-making authority and cannot impose a resolution upon the two parties
- RICS Guidance Note on Mediation, 2014
What is arbitration (role/rules, binding?, powers (2), knowledge, negligence, practical benefits), and when can a Surveyor act as an Arbitrator?
- Arbitrator appointed in a quasi-judicial role in accordance with the Arbitration Act 1996
- Parties are bound by the decision
- Can order a hearing or consider written representations
- Will have specialist knowledge in the subject area
- Cannot be sued for negligence but their decision can be over-ruled by the Court of appeal on a point of law only
- Offers a fast, cost effective and confidential solution to a dispute
- Surveyors can act as an arbitrator having passed the Chartered Institute of Arbitrators exams
What form of arbitration can be used for lease renewal disputes?
PACT (Professional Arbitration on Court Terms)
What is independent expert determination (appointment, knowledge, binding?, evidence/opinion, practical benefits), and what RICS guidance is available?
- Independent expert is appointed by the two parties (or by President of the RICS undertaken by the RICS Dispute Resolution Service)
- Expert has knowledge on the subject matter of the dispute
- Both parties are bound by the decision
- Independent expert is appointed to investigate the dispute and receive evidence from both parties
- They can use their own opinion or evidence to decide upon the award
- Process offers speed and specialist knowledge in the solution
- RICS Guidance Note on Independent Expert Determination, 2016
Who could you use if you had a service charge dispute?
RICS panel of Independent Experts for Service Charge Dispute Resolution
What is early neutral evaluation?
Use of an independent person, experienced in the subject matter of the dispute, to investigate and give their non-binding opinion
What is an expert witness, what must one provide/how act, and what RICS guidance is available?
- When a surveyor provides evidence to a judicial or quasi-judicial body
- The expert must provide a Statement of Truth and confirmation that they will act impartially and objectively to the body
- Should give an objective and unbiased opinion to matters relating to their experience - they cannot ‘cherry pick’ the details to fit the case
- RICS Professional Statement for Surveyors acting as expert witnesses, 2014
Who is an expert witnesses primary duty of care to?
The court or other dispute resolution panel and not the client, even though the client pays the fee
What is ‘hot tubbing’?
Where expert witnesses are sworn in to cases alongside each other and are give the chance to ask each other questions
What should a surveyor consider when deciding to take on an instruction as an expert witness?
Should only accept instructions is they have the knowledge, experience, qualifications and training appropriate and have no conflicts
What is the difference between arbitration and independent expert determination (law, evidence, fees, liability, appeals)?
- Arbitrator is governed by the Arbitration Act 1996, whereas Independent Experts are governed by Common Law
- Arbitrator can only make decisions based on parties’ submission, whereas Independent Experts can make appropriate investigations and use their own expert judgement
- Arbitrator has freedom to decide how the fees and costs are apportioned between the parties, whereas parties can decide how Independent Expert fees are apportioned
- Arbitrator is not liable for negligence and cannot be sued, whereas an Independent Expert can be liable for liable
- Ability to appeal arbitration under a point of law, whereas there is no right of appeal against an Independent Expert determination
Who is an Independent Expert appointed by (2 possibilities)?
Either by the President of the RICS or by the agreement of the parties
