Conflict Avoidance, Management & Dispute Resolution Procedures

Question 1

What is a conflict of interest?

Answer 1

A situation which an individual/company has competing interests or loyalties

Question 2

How can conflicts be managed?

Answer 2

1. Avoidance
2. Written advice to both parties
3. Set up conflict management procedures

Question 3

What is difference between a conflict and a dispute?

Answer 3

Conflict = long term with deeply rooted issues seen as ‘non-negotiable’
Dispute = short term can result in reaching a resolution, negotiable issues

Question 4

What are the different types of Alternative Dispute Resolution (ADR)?

Answer 4

Neamio

1. Negotiation
2. Mediation – neutral who facilitates discussion between parties
3. Independent Expert Determination – appointed by two parties, undertakes own investigations both parties bound by decision, can be sued, issues determination
4. Arbitration – provide information to, limited right of appeal to High Court – not liable for negligence, powers of disclosure, bound by decision – cannot be sued
5. Early neutral evaluation – independent, non-binding opinion
6. Ombudsman – confidentially receives details and instigates resolution of complain

Question 5

What are the benefits of ADR?

Answer 5

1. Speed
2. Informality
3. Greater opportunity for negotiation
4. Less cost
5. Quality of decision making
6. Confidentiality

Question 6

What’s the difference between an arbitrator vs independent expert?

Answer 6

Arbitrator:
* Decision based on submissions of the parties
* Needs parties to submit evidence
* Cannot be sued
* Issue an ‘award’
Independent expert:
* Does not have to reach compromise – uses own knowledge and expertise
* Can be sued for professional negligence
* Issues a ‘determination’

Question 7

What RICS document relates to expert witness?

Answer 7

RICS Surveyors acting as Expert Witness Practice Statement (2014, amended 2020). Duty to the courts, even if client pays fee – can be sued for negligence (Jones v Kaney 2011). Must not be conflicted – no inventive fees allowed

Question 8

What is your conflict avoidance style?

Answer 8

I confront the issue as I feel that this is the quickest and least adversarial way to avoid conflict, by dealing with the facts.

Question 9

What statute does Arbitration sit under?

Answer 9

The Arbitration act 1996

Question 10

What is an expert witness?

Answer 10

Someone with specialist skills, knowledge, or experience who testifies in court about what they believe has happened in a certain case based on those specialist skills, knowledge, or experience.

Question 11

Can you list the main differences between an Independent Expert and an Arbitrator in Rent Review Disputes?

Answer 11

Independent Expert
- Does their own investigation using their knowledge
- can be sued under negligence
- doesn’t have powers of disclosure
- doesn’t have legal backing
- outcome = determination
- guidance: Independent Expert Determination 2016

Arbitrator
- Acts on evidence submitted by parties
- not liable for negligence and can’t be sued
- has powers of disclosure
- outcome = award
- Guidance: Surveyor acting as Arbitrators in Commercial Property Rent Reviews 2013

Question 12

Who can be sued. Arbitrator or Independent Expert?

Answer 12

Independent Export- can be liable for damages under negligence and can be sued.

Question 12

Who has powers of disclosures Arbitrator or Independent Expert?

Answer 12

Arbitrator

Question 13

What are the most common causes of dispute?

Answer 13

• poorly drafted lease
• mismanaged expectations - which is why understanding client objectives is so important
• not identifying potential conflicts
• poor record keeping
• unpaid rent
• delays
• parties not engaging in negotiations
• defects
• professional negligence
• conflicting personalities
• difference in professional opinion

Question 14

What is required when avoiding a conflict?

Answer 14

1. Clear concise, careful drafting of the contract or lease.
2. Adopting proactive conflict avoidance
3. Managing parties expectations and service of appropriate notices
4. Negotiating contractual obligations carefully
5. Keeping good records

Question 15

What are the three main processes available in resolving disputs?

Answer 15

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

Question 16

What are advantages to alternative dispute resoluation?

Answer 16

1. Speed - taking less time than lengthy court proceeding
2. Informality - outside a court
3. Negotiation - more room for negotiation
4. Cost - less costs on fees for litigation
5. Quality of decision - outcome can be made by surveyor rather than judge
6. Confidentiality

Question 17

What’s the difference between an independent expert and an expert witness?

Answer 17

Independent Expert = resolves disputes through a binding decision
Expert Witness = assists a court or tribunal by providing expert opinion or evidence to help them understand complex issues.

Independent Expert
- Role: Decision maker who issues binding determination
- Duty: To parties, aiming for fair and reasoned outcome
- Decision: final, binding decision
- Appointment: by mututal agreement or professional body
- Nature of work: Investigates and make decisions based on expert knowledge

Expert Witness
- Role: Provides evidence or opinions to assist the court / tribunal
- Duty: To court / tribunal, even if appointed by one party
- Decision: Opinion of evidence (not a decision)
- Appointment: Typically one part but can be jointly appointed
- Nature of work: Prepares reports and gives testimony to explain technical matters

Question 18

What is an expert witness?

Answer 18

A surveyor who provides evidence to a judicial or quasi- judicial body it is as an expert witness

Question 19

Who does an Expert Witness owe a duty of care?

Answer 19

The court or other dispute resolution panel, NOT the client

Question 20

Who pays the expert witnesses fee?

Answer 20

The client

Question 21

What must an expert witness provide prior to accepting instructions?

Answer 21

Statement of Truth and confirm they will act impartially and objectively.

Question 22

Is a success related fee allowed in an expert witness case?

Answer 22

No. Upper Tribunal case of Gardiner & Theobald v Jackson 2018

Question 22

What is ‘hot tubbing’ referring to?

Answer 22

When experts consider cases collaboratively and ask each other questions

Question 23

What does ‘acting as an advocate’ mean?

Answer 23

When a surveyor acts for a client, representing their client at a judicial hearing / tribunal

Question 24

Who does an advocate have a duty to?

Answer 24

Has a duty solely to the instructing client

Question 25

What is the professional statement linked to acting as an advocate?

Answer 25

Surveyors Acting as Advocates, 2017

Question 26

What is the practice statement and guidance note linked with acting as an advocate?

Answer 26

Surveyors Acting as Advocates, 2008 (Scotland)

Question 27

What is the guidance note associated with conflict of interest and dispute resolvers?

Answer 27

RICS Guidance Note Conflicts of Interest for Members Acting as Dispute Resolvers 2020

Question 28

Who does the RICS Guidance Note Conflicts of Interest for Members acting as Dispute Resolvers 2020 assist?

Answer 28

Those who are appointed (by RICS President, of my direct parties) to act in any dispute resolution capacity and in wider aspect dealing with day-to-day conflict management