Conflict Avoidance, Management & Dispute Resolution Procedures

Question 1

how might you avoid a conflict arising in the first place

Answer 1

1. Clear contractual obligations
2. Proactive conflict avoidance analysis - eg would could go wrong
3. Managing expectations
4. keeping good records

Question 2

what is the most basic form of dispute resolution

Answer 2

• negotiation

Question 3

what are the 3 main processes available to solve disputes

Answer 3

1. negotiation (parties involved working i tout)
2. mediation/ reconciliation (third party that doesn’t bind parties to a decision but assists the resolution
3. adjudication process - an outcome is determined by 3rd party such as litigation or arbitration

Question 4

what is ADR

Answer 4

alternative dispute resolution
- dispute resolution techniques that fall outside the scope of court litigation

Question 5

what are the advantages to ADR

Answer 5

• speed
• informality
• cost
• quality decision making (ie surveyor rather than judge)
• confidentiality

Question 6

can you give some examples of ADR mechanisms

Answer 6

1. Arbitration
   - decides dispute in accordance with Arbitration Act 1996
   - specialist knowledge
   - reviews evidence from parties and weighs up
   - can award costs
   - cannot be sued but can be over ruled
2. Independent expert determination
   - specialist knowledge
   - can use evidence but must make own investigations
   - costs determined by contract
   - can be sued
3. Mediation
   - neutral mediator to facilitate decisions
   - no decision making authority
   - cannot impose a resolution
4. PACT (Professional Arbitration on Court Terms)
   - specific to business tenancy renewals under 54 act
   - via County Court
   - only an option if both parties agree
   - joint between Law Society and RICS
   - can act as arbitrator or ind expert

Question 7

In front of a tribunal/dispute resolver what are the two people a surveyor can act as

Answer 7

• expert witness
• advocate

Question 8

what is an expert witness

Answer 8

• individual with extensive knowledge or experience in a specific area
• use their experience to give their professional opinion
• primary duty is it the tribunal, not to the party by whom it is appointed
• only accept instructions if they have the knowledge and experience
• Unlike advocates, expert witnesses are expected to remain completely impartial. Their duty is to the tribunal or court, not to the party that hired them. They must adhere strictly to RICS guidelines when preparing reports and giving evidence.

Question 9

give an example of when you would act as an expert witness

Answer 9

• rent review disputes in front of an arbitrator or independent expert
• business tenancy renewals determined by the county court or PACT dispute resolver

Question 10

what is an advocate

Answer 10

• a surveyor with the knowledge and expertise in a specific area
• acts on behalf of the client
• They use their knowledge of RICS standards, property law, and market conditions to support the client’s case.

Question 11

what is the difference between an advocate and an expert witness

Answer 11

Unlike advocates, expert witnesses are expected to remain completely impartial. Their duty is to the tribunal or court, not to the party that hired them. They must adhere strictly to RICS guidelines when preparing reports and giving evidence.