Conflict Avoidance, Management & Dispute Resolution Procedures

Question 1

How can conflicts be avoided?

Answer 1

• Clearly agreeing a client’s objectives at the start of an instruction within terms of engagement
• Keep good record of important information
• Ensuring you are competent and have the right skills, understanding and knowledge to undertake an instruction
• Adopting proactive conflict avoidance risk analysis involving understanding what could go wrong or how misinterpretation between parties might arise.
• Negotiating contractual obligations carefully and transparently

Question 2

What are the three main processes available in resolving disputes?

Answer 2

1) Negotiation - problem solving efforts of the parties themselves
2) Mediation - third party intervention which does not bind the parties to a decision but assists them to resolve difficulties
3) Adjudicative process - outcome is determined by a third party

Question 3

What is mediation?

Answer 3

This involves the use of a neutral mediator who facilitates discussions between the two parties to explore whether a solution can be found

• it’s a confidential and informal process
• usually conducted on a ‘without prejudice’ basis
• the mediator has no decision making authority and cannot impose a resolution upon the two parties

There is a RICS Guidance Note in Mediation 2014

Question 4

What does an arbitrator do?

Answer 4

• Acts on the evidence provided and the arguments submitted
• There is limited right of appeal to the High Court on a point of law, serious irregularity or omission or the jurisdiction of the Arbitrator
• Is not liable for negligence and cannot be sued
• Has the powers of disclosure
• Acts within a formal statutory framework in accordance with the Arbitration Act 1966
• Offers a fast, cost-effective and confidential solution to a dispute
• Surveyors can act as arbitrators having passed the Chartered Institute of Arbitrators exams
  PACT (Professional Arbitration on Court Terms) is a form of arbitration used for lease renewal disputes

Question 5

What does an independent expert do?

Answer 5

• Has a duty to investigate to discover the facts. Can use their own knowledge and expertise to reach their decision
• There is no right of appeal
• Can be liable for damages because of negligence by being sued
• Has no powers of disclosure
• There is no relevant legislation so acts with an informal procedural timetable

Question 6

What is early neutral evaluation?

Answer 6

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

Question 7

What does it mean to act as an expert witness?

Answer 7

• When a surveyor provides evidence to a judicial or quasi-judicial body it is as an expert witness
• RICS Professional Statement ‘Surveyors acting as Expert Witnesses’ (2014)
• A surveyor should only accept the instructions to act as an expert witness if they have the knowledge, experience, qualifications and training appropriate for the instruction and have no conflicts
• A surveyor’s primary duty is to the Court not the Client, even though the Client pays the fee.

Question 8

What does it mean to act as an advocate?

Answer 8

• A surveyor acting as an advocate for a client represents their client at their judicial hearing/tribunal
• They have a duty solely to the instructing client
• Thet must act in a way to maintain the integrity of the judicial process
• They must be competent to act in this advocacy role
• Essentially like acting as a lawyer

Question 9

What are the key principles within this Guidance note on Conflicts of Interest for members acting as DR’s (2017)?

Answer 9

The overriding principle is that every dispute resolver should be and be seen to be, impartial at the time of accepting an appointment and remain so during the entire proceedings until the final decision has been given or the dispute has otherwise finally terminated.