Conflict Avoidance, Management & Dispute Resolution Procedures

Question 1

What do you understand to be the difference between an arbitrator and an independent expert?

Answer 1

An arbitration is a legal proceeding and the arbitrator reaches a decision on the basis of evidence put before him/her, sometimes at a formal hearing. An independent expert is jointly appointed by the parties and carries out work in the usual way in order to give an expert opinion.
The arbitrators decision is enforceable as if it were a judgment of the court. Although the arbitrator is not liable for negligence the court can set the judgement aside on the grounds of misconduct. An independent experts decision is not enforceable directly by the courts and they are not liable for negligence.

Question 2

What types of dispute have you come across in your experience and how have these been received?

Answer 2

Answers to this type of question do not have to relate to formal dispute resolution procedures and you could take a situation from your workplace or with contractors or clients that you have resolved by negotiation. Follow on questions may ask you to explain what the next step would have been had you not been successful.

Question 3

What options are there for dispute resolution?

Answer 3

Dispute Resolution (RICS Gold Book)
Always negotiate directly first to resolve dispute
Alternative Dispute Resolution
- Professional Arbitration on Court Terms (PACT)
- Expert Determination
- Ombudsman
- Mediation
- Adjudication
- Arbitration
Litigation

Question 4

What are the advantages of ADR?

Answer 4

Speed - quicker than court
Informality - outside court
Cost - less money spent on professional fees for litigation

Question 5

What is PACT?

Answer 5

Offered between Law Society and RICS
Lower costs
Decision by specialist rather than a judge - choose lawyer or surveyor
Generally used to determine rent in LR disputes

Question 6

What ia a S.146 notice?

Answer 6

Forfeiture notice due to breach of lease

Warns the tenant who is in breach of covenant that the landlord intends to forfeit the lease
Applies to all breaches of covenant except for non-payment of rent
Specifies the breach and whether possible to remedy it
Specifies intention to forfeit if breaches are not remedied within a reasonable time
Compensation to landlord

Question 7

How can you forfeit?

Answer 7

Peaceable re-entry - enter premises by changing locks and posting notices of re-entry
Court action - apply to court. Would require waiting for a court date
Tenant can apply for relief from forfeiture if they remedy the breach and/or offer compensation