Conflict Avoidance, Management & Dispute Resolution Procedures Flashcards
How would you increase your chances of avoiding conflict?
- Ensure any contracts or leases are worded concisely, clearly and carefully
- Maintain good, detailed records
- Negotiate contractual obligations clearly
-Manage all parties’ expectations by understanding their objectives - Adopt proactive conflict avoidance (e.g. identify what could go wrong or where conflicts might arise between party)
What is conflict management?
The use of tools, processes and skills to find ways to manage disagreements and disputes
What are some methods of dispute resolution?
Can range from simple negotiation to litigation
What is Alternative Dispute Resolution?
Methods of resolving disputes that fall outside the scope of court litigation
What are the advantages of ADR?
- Often quicker and cheaper than litigation
- The decision is made by a surveyor as opposed to a judge
- Greater opportunity for negotiation
- Confidentiality
What is your understanding of arbitration?
A method of conflict dispute resolution often used for rent review disputes
- The arbitration process is governed by the 1996 Arbitration Act
- The arbitrator will have specialist knowledge of the subject area and, if appointed by the RICS Dispute Resolution Service, will be highly trained
- Proceedings are normally dealt with via written representations, although the arbitrator can call a hearing
- The arbitrator is able to award costs
- An award is produced that binds the parties
- Arbitrators cannot be sued for negligence, although their decision can be appealed on one of three grounds: point of law, serious irregularity, jurisdiction)
What is your understanding of Independent Expert Determination?
- A method of ADR (i.e. dispute resolution without going down litigation route)
- both parties must agree to the appointment of an independent expert
- there is no legislation that governs the role of an independent expert
- Like arbitration, it produces a decision that is binding. The independent expert will have specialist knowledge of the subject area and, if provided by the RICS Dispute Resolution Service, will be highly trained
- Technically, an independent expert can be sued for negligence, however it is difficult to overturn their decision in practice
- independent expert is under a duty to conduct their own investigation, however they will often invite written representation from the parties concerned
- The IE can award costs, however their ability to do so is determined by the contract between the parties
Explain your understanding of PACT
- Professional Arbitration on Court Terms
- A joint initiative between the Law Society and the Royal Institution of Chartered Surveyors to resolve lease renewals disputes via a property specialist as opposed to a judge in a county court
- It can be used to resolve disputes relating to matters including the duration of a new lease, rent, repairing clauses, service charge, alienation, break clauses etc.
- The dispute resolver can act either as an arbitrator or an independent expert, as agreed by the parties.
- Advantages: can be a faster, more cost-effective method of dispute resolution than going to court; also confidential
What are the differences between an arbitrator and an independent expert?
Arbitrator Independent Expert
- Acts on evidence submitted by the - Relies on own investigation
parties - Can make a determination
- cannot make an award without without receiving evidence
receiving evidence from at least one from either party, although it
of the parties is likely that written
- Governed by the Arbitration Act representations will be
1996 invited
- not governed by any
legislation
- Has the power to award costs - cannot award costs unless
including their own and that of the lease, contract or the parties
parties confer such power upon
them
- Limited right of appeal but - No right of appeal or
restricted to point of law, serious challenge but parties can
irregularity or lack of jurisdiction sue for negligence
What is mediation
- The use of a third party to facilitate discussions between parties involved in a dispute
- usually conducted on a without prejudice basis
- A confidential and informal process
- the mediator has no power to come to a determination or to impose a resolution
What is “without prejudice”?
Statements made in an attempt to settle a dispute cannot be used in court as evidence of admissions against the party that made them
What is the RICS Dispute Resolution Service?
- The world’s oldest and largest provider of ADR services in the property and land industries.
- Its services include independent expert determination, arbitration, PACT and dilapidations disputes
What are the roles a surveyor could play in dispute resolution proceedings?
- Expert Witness
- Advocate
What guidance must a surveyor acting as an expert witness adhere to?
2014 RICS Practice Statement and Guidance Note for Surveyors acting as Expert Witnesses (RICS issued a Practice Alert in Feb 24 to remind members’ duty to adhere to this guidance note)
- This guidance note sets out expert witnesses’ duty to act independently and impartially
To whom is the primary duty of a surveyor acting as an expert witness?
- The tribunal (i.e. the court/independent expert/arbitrator) and not the party who appointed them
