Conflict avoidance, management & dispute resolution procedures Flashcards
What is JLL’s complaints handling procedure
a) A complaint has to be issued to the Contracting Party, the main point of contact who is the Director responsible for dealing with the instruction.
b) a complaint can be issued either in person, in writing, or by telephone.
c) the Contracting Party has to acknowledge the complaint in writing confirming the complaint is being handled
d) acknowledged within 72 hours (3 days) and a a deal Director has to respond within 15 working days.
e) the Ethics and Compliance team has to be informed within 8 weeks if the complaint cannot be resolved
f) if the complaint remains unresolved, then it should be referred to the the Centre for Effective Dispute Resolution
What parties manage a complaint at JLL?
a) Contracting party - the director responsible for dealing with the instruction
b) Nominated contract - an experienced member of the Legal, Ethics and Compliance Team
c) Alternative Dispute Resolution Provider - an external organisation that can be called upon to adjudicate on complaints as required
What is the RICS DRS? What are the various resolution opportunities it offers?
a. RICS Dispute Resolution Service – found on RICS website
b. Offer DRS for:
i. Dilapidation disputes
ii. Adjudication services
iii. Construction and engineering arbitration service
iv. Neighbour dispute service
v. Mediation services
What are the types of conflict?
a. Party conflict – when you work on the same instruction for two clients
b. Own interest conflict – relating to a personal interest
c. Confidential information conflict – relating to work between two parties that is confidential
What are the ways in which disputes can be resolved?
a. Negotiation – Parties negotiate between themselves
b. Mediation – 3rd party intervention that doesn’t bind parties to a decision but assists resolution
c. Adjudication – Outcome is determined by a 3rd party, such as litigation or arbitration
What is Litigation?
The process of taking legal action
What is Arbitration?
The use of an independent person or body to settle a dispute
What is the difference between Arbitration and Adjudication?
a) Adjudication is a quicker process, often resolving disputes within 28 days.
b) Arbitration is a longer, more formal process that may be better suited for complex disputes
What are some advantages of Alternative dispute resolution?
a. Quicker than court proceedings
b. Informality
c. Less expensive than litigation
d. More opportunity for negotiation
e. Confidentiality
f. Quality of decision making – outcome can be made by a surveyor rather than a judge
What is the CEDR?
a. Centre of effective dispute resolution
b. Approved by RICS, the RICS Scheme is an independent adjudication service that has been set up to resolve disputes between member firms of RICS and their customers
What are some forms of ADR?
a. Mediation
i. Neutral mediator facilitates discussions
ii. Confidential and informal process
iii. Conducted without prejudice basis
iv. Mediator cannot impose a resolution
v. RICS Guidance Note on Mediation 2014
b. Arbitration
i. Arbitrator appointed in accordance with Arbitration Act 1996
ii. Arbitrator has specialist knowledge of subject
iii. Arbitrator cannot be sued for negligence
iv. The decision can be over-ruled by Court of Appeal
v. Fast, cost effective and confidential
vi. Surveyors can act as arbitrator if they’ve passed Chartered Institute of Arbitrators exams
vii. Professional Arbitration on Court Terms (PACT) is a form of arbitration for lease renewal disputes
c. Independent Expert determination
i. Independent expert appointed by the two parties or by the president of the RICS if undertaken by the RICS DRS for disputes such as rent reviews
ii. They will have expert knowledge of the subject
iii. Both parties bound by decision
iv. Both parties present evidence to the expert
v. PACT is also a form of independent expert determination for lease renewal disputes
vi. RICS Guidance Note on Independent Expert Determination 2016
vii. There is a RICS panel of Independent Experts for Service Charge Dispute Resolution
What is in the Arbitration Act 1996?
The Arbitration Act 1996 is an Act of Parliament which regulates arbitration proceedings
What guidance is there on expert witness/advocates?
a. RICS practice statement & Guidance note Surveyors Acting as Expert Witnesses 4th edition 2014 (amended 2023)
i. Only accept to be a witness if you have knowledge, training and experience on that topic
ii. You cannot be a witness if you have a conflict of interest
iii. A success related fee is not allowed (Gardiner & Theobald vs Jackson (2018))
iv. Expert witnesses are now not immune from civil action (Jones vs Kaney (2011))
b. RICS Professional Statement Surveyors Acting as Advocates 2017
i. A surveyor acting as an advocate represents their client at a judicial hearing/tribunal
ii. They have a duty solely to the client
iii. They must be competent to act in this advocacy role
What is adjudication?
a. Commonly used for construction payment disputes
b. Only Construction pathway candidates really need to know this
- Who can you turn to for Dispute Resolution?
the RICS ADR Services
