Conflict Avoidance, Management & Dispute Resolution Procedures Flashcards
What does Conflict Avoidance require?
Clear, concise drafting of contracts, TOE, etc
Proactive conflict avoidance risk analysis, such as understanding what could go wrong or how - misinterpretation
Managing expectations - understand objectives of parties - and ‘early warning signs’ such as service of appropriate notices
Keep good records
Negotiate contractual obligations transparently to enable efficient resolution
What are the three main ways of Dispute Resolution?
- Negotiation
- Mediation
- Adjudicative process
What are the advantages of Alternative Dispute Resolution?
Speed
Informal - outside court
Greater opportunity for negotiation
Cost
Confidentiality
What are some examples of ADR’s?
Mediation - use of neutral mediator to facilitate discussions with no decision-making authority. Confidential and informal.
Arbitration - Quasi-judge role in accordance with Arbitration Act 1996. Parties bound by decision. Arbitrators can order court decision and have specialist knowledge. Surveyors can act as arbitrators having passed Chartered Institute of Arbitrators exams
Independent Expert Determination - Expert appointed by parties (or by RICS Dispute Resolution Service) to investigate. Can use own opinion or evidence to decide. Parties bound by decision.
Adjudication - uses own knowledge to reach legally binding decision in a contractual process. Strict 28-day timescale imposed by legislation.
Early neutral evaluation - independent person, experienced in subject, investigates, and gives non-binding opinion.
What is covered in the RICS Practice Statement Surveyors Acting as Expert Witness 2020 (amended 2014)?
Duty of care to court, not client
Need for conflict-of-interest check
Written TOE needed before actin setting out fee
Advice must be unbiased, impartial, and fall within expertise and experience
Must state facts and assumptions, and not omit material facts that might be relevant to your advice
Cannot be on conditional fee basis
Should inspect if required. Where inspection falls short or is not possible, should state impact in investment given
What guidance is given in the RICS Professional Statement Surveyors Acting as Advocate (2017)?
Must act in best interests of client
Must only act in matters where you have experience and knowledge - must not advise beyond knowledge
Must confirm instructions in writing
Must not mis-state facts to advance client’s case
Must act in a way to maintain integrity of judicial process
What ADR services do RICS provide?
RICS Dispute Resolution Service
Boundary Disputes Mediation Service
Professional Arbitration in Court Terms
How do you decide which ADR to use?
Stated in complaints handling procedure or specified on lease
Why is it important to manage conflict?
Estimation that $48.6 billion tied up in disputes across global construction
Estimated 750 years of delay globally
What procedures can you follow to avoid disputes?
Clear contract documents and TOE
Effective communication procedures between all parties
Accurate record keeping
Issuing written correspondence to confirm actions and decisions taken
Follow company and contractual procedures
Follow RICS standards and professional guidance statements
In your experience what are some common causes of disputes?
Errors and conflicting information within tender documentation
Poorly defined change control procedures
Lack of knowledge/ understanding of contractual obligations
Contract errors
Poor contract administration
Poor quality of workmanship
Delays to payments/ non payments of claims
Nonconformity of contractual obligations
What is TCC?
Technology and Construction Court
Court specialising in construction and technology disputes
Governed by Civil Procedure Rules
What do suitable claims assessed within TCC include?
Building or Construction Disputes
Engineering Disputes
Claims relating to professional services such as engineering, surveying and accountancy
Enforcement of cases adjudicated under the Housing Grants, Construction and Regeneration Act 1996
What is an expert witness?
An expert in their particular field who applies their knowledge, experience and specialist training to assist the courts or parties involved in disputes
Provide their expert opinion in legal cases and disputes to assist the court in arriving at a sound and reasoned decision
Usually called upon in cases that require technical, scientific or industry knowledge that only an expert would possess
Eg on complex issues like
- Insurance
- Injury claims
- Boundary disputes
What is mediation?
A form of dispute resolution that is entered into by the consent of both parties
A third party mediator is appointed to resolve the dispute and assists in a supported negotiation to
