Conflict Avoidance, Management & Dispute Resolution Flashcards
Explain the difference between a conflict and dispute
Conflict: arises from failure to comply with contractual obligations
Dispute: arises from uncertainty / behaviour / misinterpreting
What is the dispute resolution hierarchy?
AVOIDANCE
MANAGEMENT
RESOLUTION
Explain conflict avoidance and management
AVOIDANCE
RICS conflict avoidance process (CAP)
RICS dispute resolution service
Concise drafting
MANAGEMENT
Managing a conflict should allow management without further escalation to formal resolution.
Good record keeping
What processes are there in Dispute resolution ?
NEGOTIATION
MEDIATION
ADJUDICATION
What is negotiation
Negotiation the problem solving for both parties.
It is less formal, quick and collaborative
What is mediation?
3rd party consolidation - to neutrally assist in a mutual agreement by facilitating discussion. NON binding.
Is without prejudice and confidential.
What is adjudication?
Court proceedings:
litigation / arbitration.
Binding judgement.
What ALTERNATIVE dispute resolution procedures are there?
ARBITRATION
INDEPENDANT EXPERT
MEDIATION
+
Expert witness
Advocate
Early neutral evaluation
What is an ombudsman?
Eg. NEW HOMES OMBUDSMAN
Used in an organisation confidentially to investigate complaints.
If not, court proceedings occur.
What does the RICS dispute resolution service do?
ADR provider
Sources a resolved/mediator/independant expert
Business to Business only.
Why does using standard forms reduce disputes? Name some ..
To reduce ambiguity and increase consistency. They’re tried and tested.
Consultant Appt Form
What is without prejudice
Can’t be referred to in court
What is STC?
Pre contractual or non committal
What protocol must you follow before a dispute resolution action is taken.
Explain conduct
Set out the steps to court
Set out each parties expectations
What is an expert witness?
When a surveyor provides evidence to a judicial or quasi judicial body.
Duty of care to courts.
Must have no conflicts or training: this is solely providing statement of truth.
Can be sued for negligence cannot be paid a fee (incentive)
What is an advocate?
Represents client in hearing.
Duty to client.
Acts to maintain integrity of processes.
What is Early neutral evaluation
Use of an independent person in expert area. To give their non binding opinion.
What is an INDEPENDENT EXPERT
Both parties appoint an independent expert from the RICS panel of indp.experts.
Investigates evidence and offers opinion.
BOUND BY DECISION.
What is Arbitration?
Is the process whereby an arbitrator assumes a quasi judicial role that resembles a judicial function without applying the law, and makes an executive decision based on their specialist knowledge and evidence.
Cannot be sued for negligence.
Eh PACT (professional arbitration on court terms)
