Conflict Avoidance, Management & Dispute Resolution Procedures Flashcards
Tell me about your complaints handling procedure (CHP)?
CHP – Must be an approved method by RICS and PI - Two stage process
Stage one: Obtain the complaint in writing acknowledge in 7 days and nominate a complaint officer to deal with it. Then deal with the complaint within 28 days.
If it cant be settled then Stage two: Goes to a third party redress system through a property ombudsman to deal with complaint.
If you think a claim is going to be made, notify PI. May wish to seek legal advice too.
If sole trader nominate someone at another firm to deal with complaints. If you don’t deal with it the RICS can step in.
Keep a complaints log.
What is Mediation?
Anyone can Mediate and is an assisted form of negotiation and not binding, less formal, cheap quick. Third party. Work out what you agree on solution.
What is Expert Determination?
Expert determination – type of ADR.
Requires the submission of a contract usually after the dispute arises.
An expert is appointed to determine the dispute. Is Binding. Confidential and cant award costs. Not supported by statute.
(i.e. third surveyor in the party wall etc act)
What is Adjudication?
Adjudication - usually appointed within 7 days and they have 28 days to make a decision
Cheap
Supported by statute
Cant award costs other than their own
The decision is binding until the contract has finished or abandoned and the parties can agree to the decision or user another ADR function
RICS can act as adjudicator as referenced in JCT
What is Arbitration?
Arbitration – Arbitrator (Judge Rinder) usually acts as a Referee who has knowledge of the issues but usually less Law knowledge.
Binding. Can order costs. Arbitrator is not liable. Information is shared between the parties unlike mediation. Referenced in contracts. Little scope for appeal.
What is Litigation?
Litigation – Dealt with by the courts, either low-cost courts or high courts of Technology and Construction Court.
Encourages persons to use alternative methods.
Binding. Courts award costs. time/money consuming. For public interest.
What are dispute resolution boards?
Dispute resolution boards – Appointed at the start of big projects, can be seen as pre-agreed mediators.
What is an expert witness?
Expert witness – expert to the court. Dealt with by Part 35 of CPR.
Explain your company’s complaints handling procedure?
2 Stage – get the complaint inwriting, respond in 7 days advising who will be the complaints officer, and investigate within 28 days. If the client is not satisfied they can elevate to stage 2 which goes to a redress system through a third party/property ombudsman to deal with and hopefully come resolve the dispute/complaint.
Keep a complaints log
Notify PII Immediately if you believe a claim will be made against you, in this event it would also be beneficial to seek legal advice.
Under JCT how long does an Adjudicator have to make an Award?
28 days from issue of the referral notice, but this can be extended to 42 if both parties agree.
What is ADR?
ADR stands for Alternative Dispute Resolution, and was introduced as part of the Civil Procedure Rules 1998.
• These Alternative Dispute Resolution procedures are, the three pillars:
- Negotiation
- Mediation
- Adjudication, Arbitration, Litigation.
What are the Civil Procedure Rules 1998?
They’re an improvement to the legal system, making it quicker, cheaper and easier to understand through the introduction of Alternative Dispute Resolution (ADR).
What is the adjudication process?
- Notification of Adjudication from one party to another.
- From receipt of notification, parties have up to 7 days to appoint the adjudicator.
- Adjudicator will review parties cases, and make their decision within 28 days. (This can be extended to 42 days)
- The adjudicator does not have the power to award costs, unless the parties agree to grant him this power.
What is the arbitration process?
- Party notifies other they wish to enter into Arbitration.
- The appointed Arbitration body must be notified, and they will appoint an Arbitrator.
- The main hearing will be held, whereby each side will present their version of the conflict, along with their evidence.
- The arbitrator will then base their decision on what they believe to be fair and just, as they are not required to follow the law or reasoning of earlier case decisions.
• It is very difficult to appeal an Arbitration, they can only be appealed if it can be proved that the arbitrator was:
o Corrupt.
o Bias.
o Arbitrator exceeded their power.
How do you prevent disputes arising?
Early notices of key issues
Communication and negotiation
Appointment of a dispute board or adviser.
