Conflict Avoidance, Management & Dispute Resolution Procedures Flashcards
What is bias?
A real or perceived indication for or against a person or a group
What are the 3 pillars of ADR?
Negotiation
Mediation
Adjudication
What are the methods of adjudication?
Expert witness determination (independent expert appointed to make a binding decision, usually for an issue that requires experience and expert knowledge)
Arbitration (usually a legal issue, arbitrator appointed to make a binding decision)
What are the types of mediation?
Mediation is where a neutral third party assists with positive dialogue, with the mutual intention to resolve the matter.
Facilitative mediation =
Facilitates discussion which leads to agreement. The mediator does not provide personal assessments or recommendations for settlement.
RICS Dispute Resolution Service uses facilitative method.
Evaluative mediation =
Involves an expert who does that of a facilitative mediator, but also provides their evaluations on the strengths and weaknesses of the parties positions. They can also give an opinion of the likely outcome if the matter went to court and must give recommendations on the settlement terms.
What is negotiation?
The parties embark on meaningful dialogue with the joint aim of achieving a mutually agreeable outcome. No third party is involved.
What is ADR?
Alternative Dispute Resolution (to litigation)
The courts encourage exploring ADR first.
What are the benefits of ADR?
Usually -
Quicker
Cheaper
More flexible decisions
Expert usually the one making decision, rather than court who may not have adequate knowledge
What is a Calderbank offer?
A private and confidential offer intended to end a dispute. If declined, it cannot be revealed during ADR or court proceedings until after the decision has been made.
If the decision is made and less is awarded than what was within the Calderbank offer, costs can be awarded to the party who declined.
Calderbank vs Calderbank 1976
What is the Ombudsman?
Handles complaints for hundred of sectors, with a sector wide role to improve standards. Involves the appointment of a neutral third party to handle disputes.
The Property Ombudsman is an RICS approved mechanism.
What are quasi-judicial procedures?
ADR methods that involves legally binding decisions (arbitrations and expert witness determination)
When may you use a memorandum of understanding during a dispute?
A memorandum of understanding is a non-binding agreement that can be used to define the start point of negotiations, scope and purpose.
How might you document the decision made during negotiation or mediation?
Heads of agreement. Helps to prevent further dispute.
If there was a dispute regarding a lease renewal, are there any other methods to explore?
The RICS has a specific method for lease renewals called Professional Arbitration on Court Terms (PACT), where a lease expert is appointed to make a binding decision.
What is the RICS material relating to Conflicts of Interest?
RICS Professional Standard: Conflicts of Interest Jan 2018
When could you proceed if there is a conflict of interest?
Where you believe that you can still act objectively and in the interest of both parties, and where prior informed consent has been obtained.
Records must be kept of all information relating to the conflict and its management.
What procedures can you adopt to avoid disputes?
Clear terms of engagement
Effective communication
Accurate record keeping
Written correspondence to confirm actions and decisions taken
Following RICS standards and professional procedures.
Can you give me some of the professional obligations as RICS members?
CPD - 20 hours (10 formal)
Members must corporate with RICS
Must promptly provide all information reasonably requested by the Standards and Regulation Board
What is an expert witness?
Someone who is an expert in a particular topic, who applies that to assist parties involved in a dispute. They provide professional opinion in legal cases. Usually called upon in cases that require technical industry knowledge.
What is mediation?
Form of dispute resolution that is entered into by consent of both parties.
A third party is appointed to assist with positive negotiation to reach an acceptable outcome.
The process is not binding.
What is adjudication?
Statutory procedure provided by an independent third party adjudicator who is appointed by both parties.
Investigates the dispute but no examination of evidence.
Not legally binding.
