Conflict Avoidance, Management & Dispute Resolution Procedures

Question 1

Why do conflicts arise?

Answer 1

Because of failure to comply with a contractual obligation that may occur because of differing interpretations of the contract itself.

Question 2

What needs to be followed for conflict avoidance?

Answer 2

Follow the hierarchy of avoidance, management and resolution of conflicts to try to achieve efficiency in any contractual arrangement.

Question 3

What will failure to avoid conflicts result in?

Answer 3

Incuring costs in their subsequent management and resolution

Question 4

What does Conflict Avoidance entail?

Answer 4

• Requires clear, concise, careful drafting of the contract or lease and
  associated documentation
• Adopting proactive conflict avoidance risk analysis involves
  understanding what could go wrong or how misinterpretation
  between parties might arise
• Managing all parties’ expectations requires understanding their
  objectives and clearly communicating these, as well as
  implementing ‘early warning systems’, including the service of
  appropriate notices
• Negotiating contractual obligations carefully and transparently will
  help to avoid later conflict or at least enable their efficient
  resolution
• Keeping good records to help resolve conflicts before they escalate

Question 5

What are the three main processes available in resolving disputes?

Answer 5

1. Negotiation: The problem-solving efforts of the parties themselves
2. Mediation or conciliation: A third party intervention which does not bind the parties a to a decision but assists them to resolve difficulties
3. Adjudicative process: An outcome is determined by a third party, such as litigation and arbitration

Question 6

What are alternative dispute resolution processes? (not the list)

Answer 6

These are dispute resolution processes and techniques that fall outside the scope of court litigation

Question 7

What are the advantages of ADR?

Answer 7

• Speed - taking less time than lengthy court proceedings following the Civil Procedure Rules
• Informality - outside a court
• Opportunity for negotiation
• Cost - less money spent on professional fees for litigation
• Quality of decision making, as the outcome or award can be made by a surveyor rather than a judge
• Confidentiality

Question 8

What are the main three various forms of ADR used in the UK?

Answer 8

1. Mediation
2. Arbitration
3. Independent Expert determination

Question 9

What is litigation?

Answer 9

Process of parties taking legal action through the Courts, defined by the Civil Procedure Rules

Litigation is a public process so it is not possible to preserve confidentiality.

Question 10

What is mediation?

Answer 10

A confidential process where a neutral mediator facilitates negotiations between the two parties to explore whether a solution can be found.

The mediator has no decision-making authority

RICS Guidance Note in Mediation 2014

Question 11

What is arbitration?

Answer 11

Arbitration is governed by the Arbitration Act 1996, where a third party receives written evidence or verbal evidence at a hearing from the parties’ representatives and makes a legally binding decision.

Question 12

What is independent expert determination?

Answer 12

An independent expert is appointed by the two parties to give an expert opinion on the dispute. Both parties are bound by the decision.

Question 13

What is PACT?

Answer 13

Professional Arbitration on Court Terms - form of arbitration used for lease renewal disputes

Question 14

What exams does a surveyor have to pass to be able to become an arbitrator?

Answer 14

Chartered Institute of Arbitrator exams

Question 15

What is the RICS guidance on Independent Expert determination?

Answer 15

RICS Guidance Note on Independent Expert Determination, 2016

Question 16

What is Early neutral evaluation?

Answer 16

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

Question 17

What is the RICS Conflict Avoidance Process (CAP)?

Answer 17

A procedure that can be written into contracts to help parties in construction and engineering projects to resolve disagreements out of court

The process is run by the RICS Dispute Resolution Service

Question 18

What is the role of the RICS in dispute resolution?

Answer 18

RICS runs the RICS Dispute Resolution Services, which is the largest provider of ADR services.

Question 19

What is it to act as an expert witness?

Answer 19

When a surveyor provides evidence to a judicial or quasi-judicial body it is an expert witness

Question 20

What is the RICS guidance on acting as an expert witness?

Answer 20

RICS Practice Statement & Guidance Note ‘Surveyors acting as expert witnesses’ 4th Edition 2014 (amended 2023)

Question 21

Who does the expert witness owe a duty of care to?

Answer 21

The Court or other dispute resolution panel
NOT TO THE CLIENT

Question 22

What is the relevant case law for acting as an expert witness?

Answer 22

Upper Tribunal case of Gardiner & Theobald v Jackson (2018)

Expert witnesses were reminded that a success-related fee is inappropriate

Supreme Court Jones v Kaney (2011)

Expert witnesses are now not immune from civil action in relation to evidence they give in legal proceedings and that they can be sued for negligence.

The case related to the provision of expert evidence in relation to a personal injury claim for post-traumatic stress following a car cash.

Question 23

What is ‘hot-tubbing’?

Answer 23

Experts consider cases collaboratively and ask each other questions

Question 24

What is the RICS guidance on acting as an advocate?

Answer 24

Professional Statement ‘Surveyors Acting as Advocates’ 2017

Practice Statement and Guidance Note ‘Surveyors Acting as Advocates 2008 (Scotland)’

Question 25

What does acting as an advocate entail?

Answer 25

A duty solely to the instructing client
Must act in a way to maintain the integrity of the judicial process
Must be competent to act in this advocacy role

Question 26

What is the RICS Guidance on Dispute Resolvers?

Answer 26

RICS Guidance Notes Conflicts of Interest for Members acting as Dispute Resolvers, 2020

Question 27

What is the purpose of RICS Guidance Note Conflicts of Interest for Members acting as Dispute Resolvers 2017?

Answer 27

This guidance note is designed primarily to assist those who are appointed, either by the President of RICS or directly by the parties to a dispute, to act in any dispute resolution capacity and in a wider aspect dealing with day to day conflict management

The overrding principle is that every dispute resolver should be and seen to be impart 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 been terminated

Key themes are independence and impartiality

Question 28

Key information on expert witness?

Answer 28

A surveyor should only accept instructions to act as an expert witness if they have the knowledge, experience, qualifications and training app for the instructions and have no conflicts

The expert must provide a Statement of Truth (updated 2020) and confirm that they will act impartially and objectively

The expert should give an objective and unbiased opinion to matters relating to their experience - they cannot ‘cherry pick’ the details to fit the case

Incentive (contingency) fees are not allowed - This is in line with Gardiner & Theobald V Jackson (2018) - expert witnesses were reminded that success related fees are inappropriate

Question 29

What is negotiation?

Answer 29

The problem-solving efforts of the parties themselves

Question 30

What are adjudicative processes?

Answer 30

An outcome is determined by a third party such as litigation + arbitration