Conflict Avoidance/Methods of dispute resolution Flashcards
What can you do to avoid conflict?
-Clear, concise, careful drafting of contract/lease/documents
-Understand what could go wrong and how misinterpretation could arise
-Understand client objectives -Manage expectations
-Negotiate contractual obligations carefully and transparently to avoid conflict later on/enable efficient resolution
-Keep good records
What is conflict management?
Involves the use of processes, tools and skills to find ways to manage disagreements and disputes
What is dispute resolution?
The resolution of a dispute between two or more parties
What are the main factors to consider when selecting a method of dispute resolution?
cost, access, confidentiality and speed
What is the most basic form of dispute resolution?
Negotiation- where the parties themselves negotiate a resolution (lower/no cost, quicker than litigation)
What is the most complicated form of dispute resolution?
Litigation- formal legal process that uses the civil legal system to resolve a dispute that adopts a set of rules applied by the courts
What is alternative dispute resolution (ADR)?
These are dispute resolution processes and techniques that fall outside the scope of court litigation
What are the advantages of ADR?
-Speed- quicker then lengthy court processings
-Informality- outside a court
-Negotiation- more opportunity
-Cost- less money spent on professional fees for litigation
-Quality of decision making, outcome/award can be made by a surveyor rather than a judge
-Confidentiality
Before choosing a method of dispute resolution what must you do?
Check the lease/contract between the parties as it may have a dispute resolution clause that specifies how disputes must be dealt with
What is arbitration?
-An arbitrator can decide a dispute acting in accordance with statute e.g. Aribtration Act 1996
-Binding decision
-Specialist knowledge of subject area
-Usually dealt with via written representations but can order a hearing
-Has the power to award costs
-Commonly used for rent review disputes
What are the advantages of arbitration?
-Specialist knowledge of subject area
-Binding decision
-Can be fast, cost effective (compared to litigation) and confidential solution to a dispute
-Can appeal on three grounds (jurisdiction, point of law or serious irregularity)
What are the disadvantages of arbitration?
-Limited grounds for appeal
-Arbitration fees are still costly
-May not be suitable for extremely complex cases
What is independent expert determination?
- Under a duty to make their own investigations and use their knowledge and experience to make a decision
-Often invite written representations from the parties
-Appointed by agreement of the parties (may also be specifically set out in the lease/contract)
-Binding decision
-May be able to award costs depending on the contract between the parties
-Commonly used for rent review disputes and potentially service charge disputes
What are the advantages of independent expert determination?
-Specialist knowledge of subject area
-Binding decision
-Can be fast and confidential solution to a dispute
-Cheaper than litigation and arbitration
What are the disadvantages of independent expert determination?
-Very difficult to overturn a determination (no appeal process)
-Arbitration fees are still costly
What is PACT?
-Professional Arbitration on Court Terms
-A form of alternative dispute resolution (ADR) specific to business tenancy lease renewals under the LTA 1954
-Alternative to dispute resolution via County Court (only available if both parties agree)
-Can be used before or after formal lease renewal court proceedings have been issued
-A joint initiative between RICS and the Law Society for determination of disputed terms by a property specialist rather than county court judge
-Dispute resolver can act as an independent expert or an arbitrator- agreed between parties
What are the advantages of PACT?
-Can be fast, cost effective and confidential solution to a dispute compared to litigation
-Decision is binding
-Decision made by a property specialist
-Parties can control the procedure
What are the disadvantages of PACT?
-Costs can still be high
-Limited grounds for appeal
What is the RICS Dispute Resolution Service?
The world’s oldest and largest provider of ADR services in property industry and provides dispute resolution/avoidance services including:
-Arbitration
-Independent expert determination
-Adjudication
-Dilaps Dispute Resolution
-Boundary dispute mediation service
What is the difference between an independent expert and an expert witness?
Independent expert- a dispute resolver who decides a dispute
Expert witness- appointed to present evidence to a dispute resolver
What is involved in acting as an expert witness?
-Primary duty is to the tribunal, not the party who has appointed them
-Should only accept the instruction if they have the knowledge, experience and qualifications for the instruction and no conflicts
-Must make a declaration and give a statement of truth in accordance with RICS guidance for Surveyors acting as expert witness (2014)
-Must be independent, unbiased, within expertise/experience, truthful
-Cannot be appointed on a success related fee basis
-May act as expert witness in rent review disputes or business tenancy renewals
What is an advocate?
-Surveyor can represent a client in the role of advocate in front of some tribunals e.g. rent review disputes in front of arbitrator or independent expert (more common in Scotland)
-Owes a duty to the client and to the tribunal to act fairly
Who does an expert witness have a primary responsibility to?
To the tribunal/court, not to the party who has appointed them. Cannot be appointed on a success related fee basis
Who does an advocate have a primary responsibility to?
Duty to the client and also the court/tribunal
