Conflict Avoidance, Management & Dispute Resolution Flashcards
What is the best means of avoiding a conflict?
A clear written contract agreed and signed by both parties.
What steps other than a contact can be taken to avoid a conflict before it begins?
- Conflict Risk Analysis
- Manage Expectations
- Implement early warning systems
- Negotiate terms transparently
- Keep clear records
What are the various forms of dispute resolution?
- Negotiation
- Mediation
- Adjudication
What is Negotiation?
An early means of resolving a conflict where the conflicted parties meet to discuss how to resolve the issue.
What is Mediation?
A means of resolving a conflict with a third party overseeing the discussions. This will be on a “without prejudice” basis. In reality, the mediator has no official power.
RICS Guidance Note, 2014 to support.
What is Adjudication?
Where an external third party takes control and has a definitive decision in resolving the dispute. eg. litigation or arbitration.
If parties did not want to go to court, what options do they have?
Alternative Dispute Resolution (ADR) mechanisms
What are the various forms of ADR?
- Mediation
- Arbitration
- Independent Expert’s Determination
What are the benefits of ADR over the court process?
- Faster
- Cheaper
- Private
- Specialist
- Flexible
- Continued negotiation
What is Arbitration?
Governed by the Arbitration Act 1996
- Specialist in subject
- Has court powers like disclosure
- Parties make written representations and Arb relies on their information provided
- Has power to apportion costs in award
- Cannot be negligent
- Can be appealed
What is an Independent Expert’s Determination?
Governed by RICS Guidance Note ‘Independent Experts, 2016’
- Specialist in subject
- No court powers like disclosure
- Parties make written representation but IE can also make own investigations.
- No power on costs (unless lease dictates he can apportion his costs)
- Can be negligent
- Decision is final
What is an Expert Witness?
When a surveyor who has been representing a client submits their case to court / Arb / IE.
What governs Expert Witnesses and what are its key principles?
RICS Practice Statement ‘Surveyors acting as Expert Witnesses, 2014’
- Duty to Court, not client (regardless of fact client is paying fees)
- Must be impartial
- Must have confidence in the evidence you submit
- Must believe in the case you are presenting
What is an Advocate?
When a surveyor acts as a representative for their client in a third party matter.
- Duty to the client
- Must remain professional
- RICS GN to support
Why is it important to avoid conflicts?
Because they cause:
- Time delays
- Costs
- Reputational damage
- Relationship damage
Why are terms of engagement important in avoiding a conflict?
They set out:
- Clear scope of work
- Fee basis and payment times
- Complaints procedure
What CPD did you a do in relation to further your understanding in relation to dispute resolution at RR and LR?
I attended a session relating to Expert Witness reports for Arbitration and Independent Expert determinations.
- Difference in powers
- Difference in procedure
- Setting out a good report
What is the difference between conflict management and conflict avoidance?
Management = Implement systems or practice to mitigate the conflict as there is benefit achievable for both sides
Avoidance = Conflict is too significant and no action can deliver a benefit to both parties. Therefore, walk away.
When should you decline an instruction?
Conflicted, Failed AML checks, Not competent, PPI wont cover, unclear on objectives, Unethical
Tell me about a dispute you have dealt with?
Kevin on fees
What techniques can be used to avoid disputes?
Clear terms, paper trail, early warning systems, regular communication
What is ADR and what experience do you have of ADR?
Alternative Dispute Resolution. I have dealt with lease renewals where applications have been made to court. I have also been involved in RRs where calderbanks have been issued before the matter progresses to a third party determination.
What are the key points to be aware of as an Expert Witness?
Duty to the court
Impartiality
Must believe in case you set out
What are the main differences between an arbitrator and an independent expert at RR?
Power over costs / Minimal power over costs
Power of disclosure / No power of disclosure
Reliant on evidence submitted / Own investigation
Not negligent / Negligent
Appeal / Final decision
SOAF / Written representations
Tell me about work you have been involved in related to submission for disputes?
SOAF
Read written representations
How could you handle a complaint of conflict with a client?
RICS DRS application
Negotiate
Appoint mediator
