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Conflict Avoidance, Management & Dispute Resolution Procedures Flashcards

1
Q

What is the hierarchy of avoidance, management and resoluation?

A
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2
Q

What is a conflict of interest?

A

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

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3
Q

How can conflicts be managed?

A
  1. Avoidance
  2. Written advice to both parties
  3. Set up conflict management procedures
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4
Q

What is difference between a conflict and a dispute?

A

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

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5
Q

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

A
  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
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6
Q

What are the benefits of ADR?

A
  1. Speed
  2. Informality
  3. Greater opportunity for negotiation
  4. Less cost
  5. Quality of decision making
  6. Confidentiality
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7
Q

Arbitrator vs independent expert?

A

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’

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8
Q

What RICS document relates to expert witness?

A

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

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9
Q

What is your conflict avoidance style?

A

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

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10
Q

What statute does Arbitration sit under?

A

The Arbitration act 1996

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11
Q

What is an expert witness?

A

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.

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12
Q

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

A

LONG LIST LOOK AT AJ TABLE

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13
Q

Who can be sued. Arbitrator or Independent Expert?

A

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

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13
Q

Who has powers of disclosures Arbitrator or Independent Expert?

A

Arbitrator

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14
Q

What are the most common causes of dispute?

A
  • 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
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15
Q

What is required when avoiding a conflict?

A
  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
16
Q

What are the three main processes available in resolving disputs?

A
  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
17
Q

What are advantages to alternative dispute resoluation?

A
  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
18
Q

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

A
19
Q

What is an expert witness?

A

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

20
Q

Who does an Expert Witness owe a duty of care?

A

The court or other dispute resolution panel, NOT the client

21
Q

Who pays the expert witnesses fee?

A

The client

22
Q

What must an expert witness provide prior to accepting instructions?

A

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

23
Q

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

A

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

23
Q

What is ‘hot tubbing’ referring to?

A

When experts consider cases collaboratively and ask each other questions

24
Q

What does ‘acting as an advocate’ mean?

A

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

25
Q

Who does an advocate have a duty to?

A

Has a duty solely to the instructing client

26
Q
A
27
Q

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

A

Surveyors Acting as Advocates, 2017

28
Q

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

A

Surveyors Acting as Advocates, 2008 (Scotland)

29
Q

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

A

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

30
Q

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

A

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

31
Q
A

Flashcards (20 decks)

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