Conflict, management and avoidance, dispute resolution Flashcards
When does a conflict arise?
Failure to comply with contractual obligation
Why is it important to follow the hierachy of avoidance, management and resolution of conflicts to try to achieve efficiency in any contractual arrangement?
So there’s no failure of conflicts which will incur costs in their subsequent management and resolution
How can you avoid conflict?
”- Careful drafting of the contract
- Proactive conflict risk avoidance analysis
- Manage all parties expectations
- Negotiate transparent obligations carefully
- Keep good records “
What are the 3 main processes available in resolving disputes?
“1. Negotiation
2. Mediation or conciliation (3rd party intervention)
3. Adjucative process (Determination by 3rd party)”
What are the advantages of ADR?
”- Speed
- Informality
- Less cost
- Quality of decision
- Confidentiality”
Name some ADR available in the UK
“1. Mediation
2. Arbitration
3. Independent Expert determination”
What’s the role of an Independent expert?
”- Appointed by the two parties or President of the RICS
- Expert has expert knowledge of the subject matter
- Both parties are bound by the decision
- Receive evidence from both parties
- Experts can be cheaper than arbitrators
- Costs of referral borne by both parties
- Use specialist knowledge”
What’s the role of an arbitrator?
”- Quasi judicial role
- In accordance with Arbitration Act 1996
- Parties bound by the decision
- Specialist knowledge cannot be sued for negligence
- Fast, confidential, cost effective
- PACT (Professional Arbitration on Court Terms) is a form of arbitration for lease renewals
- Act as Arbitrator after passing Chartered Institue of Arbitrators exams
- Considers written representations
- Can be challenged on a point of law”
What is an expert witness?
”- Surveyor provides evidence to judicial or quasi judicial body
- Normally an expert in their particular field who applies their knowledge, experience and specialist training to assist the court to arrive at a reasoned decision
- Primary duty of care is to the court, even though client pays fees
- Must provide statement of truth
- Objectice and unbiased opinion
- Incentive fees are not allowed
- Can be sued for negligence Jones v Kaney 2011”
What are the key themes for dispute resolvers?
Independence and impartiality
What is the guidance notes for Conflicts of Interest?
RICS Guidance Note for Conflicts of Interest for Members acting as Dispute Resolvers, 2017
What is the RICS Professional statement on Conflicts of Interest?
RICS Professional Statement Conflicts of Interest 1st Edition March 2017, effective January 2018
What procedures can you adopt to avoid disputes?
- Clear contract documents and terms of engagement
- Effective communication procedures between parties
- Accurate record keeping
- Issuing written correspondence to confirm actions and decisions taken
- Follow company and contractual procedures
- Follow RICS standards and professional guidance statements
In your experience what are some common causes of disputes?
Lack of knowledge / understanding of contractual obligations
Poor quality of service
Delays to payments
Non conformity to contractual obligations
What is meditation?
- Mediation is a form of dispute resolution that is entered into by the consent of both parties
- Third party mediator is appointed to resolve the dispute in question and assists in a supported negotiation to reach an acceptable outcome
- Informal, flexible, allows relationships
- Mediator has no legal power to instruct either party
