Conflict Avoidance, Management & Dispute Resolution Procedures Flashcards
What is a conflict of interest?
A situation which an individual/company has competing interests or loyalties
How can conflicts be managed?
- Avoidance
- Written advice to both parties
- Set up conflict management procedures
What is difference between a conflict and a dispute?
Conflict = long term with deeply rooted issues seen as ‘non-negotiable’
Dispute = short term can result in reaching a resolution, negotiable issues
What are the different types of Alternative Dispute Resolution (ADR)?
Neamio
- Negotiation
- Mediation – neutral who facilitates discussion between parties
- Independent Expert Determination – appointed by two parties, undertakes own investigations both parties bound by decision, can be sued, issues determination
- Arbitration – provide information to, limited right of appeal to High Court – not liable for negligence, powers of disclosure, bound by decision – cannot be sued
- Early neutral evaluation – independent, non-binding opinion
- Ombudsman – confidentially receives details and instigates resolution of complain
What are the benefits of ADR?
- Speed
- Informality
- Greater opportunity for negotiation
- Less cost
- Quality of decision making
- Confidentiality
What’s the difference between an arbitrator vs independent expert?
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’
What RICS document relates to expert witness?
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
What is your conflict avoidance style?
I confront the issue as I feel that this is the quickest and least adversarial way to avoid conflict, by dealing with the facts.
What statute does Arbitration sit under?
The Arbitration act 1996
What is an expert witness?
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.
Can you list the main differences between an Independent Expert and an Arbitrator in Rent Review Disputes?
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
Who can be sued. Arbitrator or Independent Expert?
Independent Export- can be liable for damages under negligence and can be sued.
Who has powers of disclosures Arbitrator or Independent Expert?
Arbitrator
What are the most common causes of dispute?
- 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
What is required when avoiding a conflict?
- Clear concise, careful drafting of the contract or lease.
- Adopting proactive conflict avoidance
- Managing parties expectations and service of appropriate notices
- Negotiating contractual obligations carefully
- Keeping good records
What are the three main processes available in resolving disputs?
- Negotiation: Problem solving efforts of the parties themselves
- Mediation or conciliation: third party intervention which does not bind the parties to a decision but assists them to resolve.
- Adjudicative process: outcome is determined by a third party, such as litigation and arbitration
What are advantages to alternative dispute resoluation?
- Speed - taking less time than lengthy court proceeding
- Informality - outside a court
- Negotiation - more room for negotiation
- Cost - less costs on fees for litigation
- Quality of decision - outcome can be made by surveyor rather than judge
- Confidentiality
What’s the difference between an independent expert and an expert witness?
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
What is an expert witness?
A surveyor who provides evidence to a judicial or quasi- judicial body it is as an expert witness
Who does an Expert Witness owe a duty of care?
The court or other dispute resolution panel, NOT the client
Who pays the expert witnesses fee?
The client
What must an expert witness provide prior to accepting instructions?
Statement of Truth and confirm they will act impartially and objectively.
Is a success related fee allowed in an expert witness case?
No. Upper Tribunal case of Gardiner & Theobald v Jackson 2018
What is ‘hot tubbing’ referring to?
When experts consider cases collaboratively and ask each other questions
What does ‘acting as an advocate’ mean?
When a surveyor acts for a client, representing their client at a judicial hearing / tribunal
Who does an advocate have a duty to?
Has a duty solely to the instructing client
What is the professional statement linked to acting as an advocate?
Surveyors Acting as Advocates, 2017
What is the practice statement and guidance note linked with acting as an advocate?
Surveyors Acting as Advocates, 2008 (Scotland)
What is the guidance note associated with conflict of interest and dispute resolvers?
RICS Guidance Note Conflicts of Interest for Members Acting as Dispute Resolvers 2020
Who does the RICS Guidance Note Conflicts of Interest for Members acting as Dispute Resolvers 2020 assist?
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
