Conflicts, Management and Dispute Flashcards
What is a conflict?
Disagreement between parties which is usually protracted
How can conflict avoidance be achieved in the first place?
- Clear and careful drafted lease /contract docs and associated documentation
- Proactive conflict avoidance risk analysis - what could go wrong
- Keeping good records - put things in writing
- Following company policy & RICS Rules of Conduct
How could you deal with a conflict when it first arises?
Raise the issue with all arties and try resolve through communication and negotiation
What is the main processes for resolving disputes?
Negotiation - between parties themselves
Mediation / conciliation - 3rd party non-binding to assist with resolution
Adjudication - issue decided by a 3rd party - litigation / arbitration
What causes disputes in commercial property?
- Leases
- Service charges
- Rent
- Lease/rent review negotiations
What is dispute resolution?
Umbrella term to a number of processes to resolve conflicts
What should you do if negotiation breaks down and matter cant be rsolved?
Defer dispute to ADR - ideally mediation/conciliation to start
What are the key benefits of ADR?
- Speed - compared to court proceedings
- Better chance of negotiation
- Informality
- Lower cost
- Better quality decision - surveyor decision rather than judge
- Confidentiality
What are examples of ADR in the UK?
- Mediation / conciliation
- Arbitration
- Independent Expert Determination
What are pros and cons of negotiation?
Pros
- Quick process
- Parties in control
Non-adversarial - preserve relationship
Cons
- Disclosure of info in good faith
- Stalling technique
- No guarantee of decision
What is mediation?
Where an independent third party is appointed to facilitate discussions between parties with a goal of reaching an agreement
What are the pros and cons of mediation?
Pros
- Efficient
- Confidential and informal
- Parties remain in control
Cons
- No guarantee of success
- Disclosure of info in good faith
What is conciliation?
Where a conciliator provides recommendations and solutions to help parties agree
- Same pros and cons as mediation
What is arbitration?
Where an arbitrator takes a quasi-judicial role in accordance with Arbitration Act (199^)
- Decisions legally binding
- Approved by both parties or RICS
What are the pros and cons of arbitration?
Pros
- Fast, cost effective and confidential
- Arbitrators have specialised knowledge of subject area
Cons
- Limited appeal rights
- Parties bear their own costs
What is PACT?
Professional Arbitration of Court Terms
- Form of arbitration for lease renewals
RICS/law society initiative
+ Alternative to litigation
+ Legally binding
What is the benefit of PACT?
- Viable alternative to litigation
- Cost effective
- Flexible
- Efficient
- Expert decision
How can arbitration be overturned?
Litigation - in exceptional circumstances (e.g. fraud)
What is litigation?
Process of taking a dispute to a court of law
What are the pros and cons of litigation?
Pros
- Guaranteed resolution
- Sets precedent
- Right of appeal
Cons
- Expensive
- Time consuming
- Damaging to reputation
What is an independent expert determination?
Where an expert appointed by both parties or RICS president
- 3rd party expert who makes decisions based on info collected
What are the pros and cons of ind expert determination?
Pros
- Less adversarial
- Time and cost effective
- Expert decision based on own option and evidence
Cons
- No statutory back up
- Limited rights of appeal
What is adjudication?
What is an expert witness?
Expert in subject field who uses experience to assist court and other legal bodies ti understand issue so they can reach a sound and just decision
- Usually a surveyor with experience / knowledge
What are the key requirements for expert witness?
- Overriding duty to the court, not client
- Must be competent
Must be objective and impartial
What is an advocate?
Surveyor acting for a client as a advocate, representing client at judicial hearing/tribunal
Requirement:
- Sole duty to instructing client
- Maintain integrity of judicial process
- Must be competent
What due diligence do you undertake for a new isntruction?
Conflict of interest check
How do I report conflicts of interets?
Partner of charge or advisory board
What do you do in the event of a conflict of interest?
Withdrawn - disclose conflict to advisory board and partner - conflict avoidance
If can proceed - disclose to all parties and obtain informed consent
Instruct IT - info barrier
What is key RICS documentation on conflicts of interest?
RICS Professional Statement on Conflicts of Interest (2017)
- Members must
Identify and manage conflicts
- keep records
Benefits of pro-active management in settling disputes?
Anticipate problems before they arise and take steps to prevent issues before they happen
Show hard work and projects positive attitude
What are some RICS approved ADR?
Property Redress Scheme
Centre for Effective Dispute Resolution
Arbitration
What forms of ADR does Workman use
Centre for Effective Dispute Resolution
Property Redress Scheme
What would you consider to select a form of dispute resolution?
Cost in proportion to scheme
Timescales
Impact on reputation
How do you use RICS dispute resolution?
Fill out form / submit DRS form
£425 inc VAT
Tell me about effective conflict management?
Proactive management
Awareness
Understand competence
Follow RICS guidance
Ensure you provide high standards
