Conflict Avoidance, Management and Dispute Resolution Procedures - Level Flashcards
Explain how using your company internal database assists in avoiding conflict?
- By doing a post code search on the property to see if we have had previous involvement.
What is Conflict of Interest Practice Statement 2017 and how do you use it?
- The RICS publication explaining that you should refuse an instruction if there is a conflict of interest.
- However, you can still be involved if you have provided the information to the parties and they agree for you to proceed or there are separate divisions within your organisation where barriers can be in place to prevent confidential information.
Tell me about the differing types of dispute resolution and when you might use them?
- Negotiation: Used prior to any other forms of negotiation as both parties are able to come to an agreement mutually.
- Mediation/Conciliation: Used prior to litigation to reduce expensive legal fees. Both parties can walk away at any time. Conciliation is generally related to a legal point and gives an opinion.
- Expert Determination – A third party expert will make a binding decision upon the parties.
- Adjudication - In construction it is generally a dispute between parties which can be agreed quickly. In property it can be down to an assessment of a property value.
- Arbitration – A contract must state arbitration. Governed by Arbitration Rules.
- Professional Arbitration on Court Terms (PACT) – Where either party has served a section 25 or section 26 notice can make an application to court up to the expiry of the notice.
- Litigation – Where a court hears the evidence and then decides.
What do you know about PACT?
- PACT – Professional Arbitration on Court Terms – Is where either party has served either a section 25 or Section 26 notice can make an application to court up to the expiry of the notice.
What current challenges is Covid and/or Brexit bringing to Data Management?
- More and more things are required to be sent online and therefore more data is therefore required to be stored.
- Terms of Engagement are now signed by signable rather than being sent in the post.
Tell me something about Conflict Avoidance and Dispute Resolution in Construction Professional Guidance?
The Three Pillars
Conflict Avoidance
Dispute Resolution Procedures
The Three Pillars of Dispute resolution are Negotiation, Mediation and Adjudication.
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First Negotiation
* Parties try to resolve any issues. - Mediation/Conciliation
- Parties agree to an independent third party.
- The power to settle remains with the parties.
- Adjudication
- Widely used in the construction industry.
- Arbitration – Contract must contain a written agreement to arbitrate.
- Expert determination – Expert determines the outcome.
- Ombudsmen – Ombudsmen determines the outcome.
- Litigation – Courts will hear evidence on about anything. Governed by the Civil Procedure Rules.
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Conflict avoidance:
* Disputes reduced by checking contract documents. - Dispute resolution Procedures:
- The process of negotiation.
- Mediation/Conciliation.
- Adjudication.
- Arbitration.
- Expert Determination.
- Litigation.
Tell me something about RICS Professional Statement on Surveyors Acting as Advocates 2nd Edition and 3rd Edition Guidance Note 2017?
- Application of Professional Statement.
- Principal duties.
- Acting as a surveyors advocate, and instructions.
- Other duties.
- Conduct aas to statemtns of case and submissions.
- Conduct as to evidecne.
- Conduct in relation to the tribunal.
There are 7 Practice Statements and 17 Guidance Notes.
PS1 – Application of professional statement.
- Must have regard to law, rules, directions, orders or procedures.
PS2 – Principal duties.
- Must act in the best interest of your client.
- Must not allow integrity or professional standards to be compromised.
PS3 – Acting as a surveyor’s advocate, and instructions.
- You may only act where you have the experience, knowledge, and expertise.
PS4 – Other duties.
- Advise client if they are better off being represented by a lawyer.
PS5 – Conduct as to statements of case and submissions.
- Must only prepare a statement of case if it is properly arguable.
- Must not allege fraud unless you have clear instructions to do so with credible evidence.
- Must not make any statements to slander a person.
PS6 – Conduct as to evidence
- Must not mis-state facts.
- Must cease to act further if you find out a client has mis-led you.
PS7 – Conduct in relation to the tribunal
- You have a duty to assist the tribunal.
- You must not give any expert opinion evidence in the trial unless acting in a dual role.
- You must draw tribunals attention to all relevant legal decisions.
In general, the guidance notes re-iterate some of what has already been stated in PS1 – PS7.
Tell me something on the RICS practice statement and Guidance Note – Surveyors acting as expert witnesses?
- Application of practice statement.
- Duty in providing expert evidence.
- Acting as an expert witness and instructions.
- Inspections.
- Report and Oral evidence.
- Amending the contents of written reports.
- Agreeing ffacts and resolving diifferences.
- Single joint Expert.
- Advocacy and Expert Witness roles.
- Conditional fees.
There are 10 Practice Statements and 21 Guidance Notes.
PS1 – Application of practice statement
- Must provide expert evidence.
- If you depart from the Practice Statement you may be required to justify your reasons
PS2 – Duty in providing expert evidence.
- You have a duty to the tribunal which overrides duty to your client.
- Evidence must not be biased.
- Must not malign the competence of another expert witness.
PS3 – Acting as an expert witness and instructions.
- Must confirm without delay whether they accept or decline instructions.
- Must only act if you can act impartially and have the experience, knowledge, and expertise.
- Must advise client that this practice statement and the rules of the relevant tribunal will apply.
- Carry out a conflict-of-interest check.
PS4 – Inspections.
- Where an inspection is required you must carry out an inspection.
PS5 – Report and Oral evidence.
- Evidence is normally in a written report.
- Written report must comply with any rules, orders or directions and protocols.
- Keep facts and opinion separate.
- A statement of truth.
- Provide a declaration.
- Must declare where no report has been given and only given orally.
PS6 - Amending the contents of written reports.
- Where you notice a material inaccuracy or omission you must notify in writing the need to make changes and the reasons for those instructing you and the tribunal.
- A change of opinion after meeting experts a simple dated addendum or memorandum should be prepared.
PS7 – Agreeing facts and resolving differences.
- You may be instructed to communicate with the other party in order to try to agree facts and clarify differences.
- You must raise with your client the advantages, disadvantages of doing this.
PS8 – Single Joint Expert.
- All parties are on a single footing and it minimises costs.
- Must check for any conflict of interest.
- Should not attend any meeting or conference which is not a joint one unless all parties have agreed in writing or the tribunal has directed.
PS9 – Advocacy and Expert Witness roles.
- In certain circumstances lower order tribunals allow surveyors to act in the same case as a surveyor-advocate and expert witness.
- You must inform the tribunal where you have a dual role.
PS10 – Conditional fees
- You should not undertake expert witness appointment on any form of conditional or success-based arrangement.
- It is inappropriate to be remunerated by way of a conditional fee arrangement.
Explain Negotiation?
- Used prior to any other forms of negotiation as both parties are able to come to an agreement mutually.
Explain Mediation/Conciliation?
Used prior to litigation to reduce expensive legal fees. Both parties can walk away at any time. Conciliation is generally related to a legal point and gives an opinion.
Explain Arbitration/PACT?
- A contract must state arbitration. Governed by Arbitration Rules.
- Professional Arbitration on Court Terms (PACT) – Where either party has served a section 25 or section 26 notice can make an application to court up to the expiry of the notice.
Explain Adjudication?
- In construction an adjudicator is instructed to help on a disagreement and to alleviate cash flow. The adjudicators decision is final.
Explain Litigation?
- Where a court here’s the evidence and then decides.
Explain Independent Expert?
A third party expert will make a binding decision upon the parties
