Conflict Avoidance, Management & Dispute Resolution Procedures Flashcards
When would conflicts arise?
Conflicts arise because of failure to comply with a contractual obligation that may occur because of differing interpretations of the contract itself.
Such conflicts are common in construction but can also arise under other contractual arrangements such as leases
Important considerations?
It is important to follow the hierarchy of avoidance, management and resolution of conflicts to try to achieve efficiency in any contractual arrangement.
Failure to avoid conflicts will incur costs in their subsequent management and resolution
Conflict Avoidance?
Requires clear, concise, careful drafting of the contract or lease and associate documentation
Adopting proactive conflict avoidance risk analysis involves understanding what could go wrong or how misinterpretation between parties may arise
Managing all parties expectations requires understanding their objectives and clearly communicating these, as well as implementing early warning systems - including the serving of app notices
Negotiating contractual obligations carefully and transparently will help to avoid later conflict or at least enable their efficient resolution
Keeping good records with a sufficient level of detail can often help to resolve conflicts before they escalate
What are the three main processes available in resolving disputes?
- Negotiation - The problem solving efforts of the parties themselves
- Mediation or conciliation - A third party intervention which does not bind the parties to a decision but assists them to resolve difficulties
- Adjudicative process - An outcome is determined by a third party such as litigation and arbitration
What is Alternative Dispute Resolution (ADR)
Dispute resolution processes and techniques that fall outside the scope of court litigation
What are the advantages of ADR?
Speed - taking less time than length court proceedings following the Civil Procedure Rules
Informality - Outside a court
A greater opportunity for negotiation
Cost - Less money spent on professional fees for litigation
Quality of decision making, as the outcome or award can be made by a surveyor rather than a judge
Confidentiality
ADR includes Mediation, Arbitration, Independent Expert
Mediation
Involves a neutral mediator who facilitates discussions between the two parties top explore whether a solution can be found
A confidential and informal process
Mediation is usually conducted on a ‘without prejudice’ basis
The mediator has no decision-making authority and cannot impose a resolution upon the two parties
RICS Guidance Note in Mediation 2014
Arbitration
Appointed in a quasi-judicial role in accordance with the Arbitration Act 1996
Parties are bound by the decision
Arbitrators can order a hearing or consider written representations
They will have specialist knowledge of the subject area and cannot be sued for negligence but decisions can be over ruled by the Court of Appeal on a point of law
This offers a fast, cost effective and confidential solution to a dispute
Surveyors can act as an arbitrator having passed the Chartered Institute of Arbitrators exams
PACT (Professional Arbitration on Court Terms) is a form of arbitration used for lease renewal disputes
Independent Expert Determination
An independent expert is appointed by the two parties (or by the President of the RICS undertaken by the RICS Dispute Resolution Service in the case of some disputes such as for rent reviews)
RICS Guidance Note on Independent Expert Determination 2016
The expert has expert knowledge of the subject matter of the dispute
Both parties are bound by the decision
They are appointed to investigate the dispute and receive evidence from both parties
They can use own opinion or evidence to decide upon the award
The process offers speed and specialist knowledge in the solution
There is an RICS Panel of Indendent Experts for Service Charge Dispute Resolution
Early neutral evaluation
Use of an independent person, experienced in the subject matter of the dispute to investigate and give their non-binding opinion
What is an expert witness?
When a surveyor provides evidence to a judicial or quasi-judicial body it is as an expert witness
What RICS document is relevant to expert witnesses?
RICS Practice Statement & Guidance Note ‘Surveyors acting as expert witnesses’ 2014 (amended 2020)
What is the duty of an expert witness?
The expert witness’s primary and overidding duty of care is to the court or other dispute resolution panel and not to the client even though the client pays the fees
Key information on expert witness?
A surveyor should only accept instructions to act as an expert witness if they have the knowledge, experience, qualifications and training app for the instructions and have no conflicts
The expert must provide a Statement of Truth (updated 2020) and confirm that they will act impartially and objectively
The expert should give an objective and unbiased opinion to matters relating to their experience - they cannot ‘cherry pick’ the details to fit the case
Incentive (contingency) fees are not allowed - This is in line with Gardiner & Theobald V Jackson (2018) - expert witnesses were reminded that success related fees are inappropriate
What was the verdict of Jones V Kaney (2011)?
The Supreme Court found that expert witnesses are now to immune from civil action in relation to evidence they give in legal proceedings and that they can be sued for negligence
The case related to the provision of expert evidence in relation to a personal injury claim for post-traumatic stress following a car crash
