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Will P > Conflicts, Management and Dispute > Flashcards

Conflicts, Management and Dispute Flashcards

1
Q

What is a conflict?

A

Disagreement between parties which is usually protracted

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2
Q

How can conflict avoidance be achieved in the first place?

A
  • 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
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3
Q

How could you deal with a conflict when it first arises?

A

Raise the issue with all arties and try resolve through communication and negotiation

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4
Q

What is the main processes for resolving disputes?

A

Negotiation - between parties themselves
Mediation / conciliation - 3rd party non-binding to assist with resolution
Adjudication - issue decided by a 3rd party - litigation / arbitration

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5
Q

What causes disputes in commercial property?

A
  • Leases
  • Service charges
  • Rent
  • Lease/rent review negotiations
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6
Q

What is dispute resolution?

A

Umbrella term to a number of processes to resolve conflicts

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7
Q

What should you do if negotiation breaks down and matter cant be rsolved?

A

Defer dispute to ADR - ideally mediation/conciliation to start

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8
Q

What are the key benefits of ADR?

A
  • Speed - compared to court proceedings
  • Better chance of negotiation
  • Informality
  • Lower cost
  • Better quality decision - surveyor decision rather than judge
  • Confidentiality
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9
Q

What are examples of ADR in the UK?

A
  • Mediation / conciliation
  • Arbitration
  • Independent Expert Determination
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10
Q

What are pros and cons of negotiation?

A

Pros
- Quick process
- Parties in control
Non-adversarial - preserve relationship

Cons
- Disclosure of info in good faith
- Stalling technique
- No guarantee of decision

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11
Q

What is mediation?

A

Where an independent third party is appointed to facilitate discussions between parties with a goal of reaching an agreement

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12
Q

What are the pros and cons of mediation?

A

Pros
- Efficient
- Confidential and informal
- Parties remain in control

Cons
- No guarantee of success
- Disclosure of info in good faith

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13
Q

What is conciliation?

A

Where a conciliator provides recommendations and solutions to help parties agree
- Same pros and cons as mediation

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14
Q

What is arbitration?

A

Where an arbitrator takes a quasi-judicial role in accordance with Arbitration Act (199^)
- Decisions legally binding
- Approved by both parties or RICS

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15
Q

What are the pros and cons of arbitration?

A

Pros
- Fast, cost effective and confidential
- Arbitrators have specialised knowledge of subject area

Cons
- Limited appeal rights
- Parties bear their own costs

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16
Q

What is PACT?

A

Professional Arbitration of Court Terms
- Form of arbitration for lease renewals
RICS/law society initiative
+ Alternative to litigation
+ Legally binding

17
Q

What is the benefit of PACT?

A
  • Viable alternative to litigation
  • Cost effective
  • Flexible
  • Efficient
  • Expert decision
18
Q

How can arbitration be overturned?

A

Litigation - in exceptional circumstances (e.g. fraud)

19
Q

What is litigation?

A

Process of taking a dispute to a court of law

20
Q

What are the pros and cons of litigation?

A

Pros
- Guaranteed resolution
- Sets precedent
- Right of appeal

Cons
- Expensive
- Time consuming
- Damaging to reputation

21
Q

What is an independent expert determination?

A

Where an expert appointed by both parties or RICS president
- 3rd party expert who makes decisions based on info collected

22
Q

What are the pros and cons of ind expert determination?

A

Pros
- Less adversarial
- Time and cost effective
- Expert decision based on own option and evidence

Cons
- No statutory back up
- Limited rights of appeal

23
Q

What is adjudication?

A
24
Q

What is an expert witness?

A

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

25
Q

What are the key requirements for expert witness?

A
  • Overriding duty to the court, not client
  • Must be competent
    Must be objective and impartial
26
Q

What is an advocate?

A

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

27
Q

What due diligence do you undertake for a new isntruction?

A

Conflict of interest check

28
Q

How do I report conflicts of interets?

A

Partner of charge or advisory board

29
Q

What do you do in the event of a conflict of interest?

A

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

30
Q

What is key RICS documentation on conflicts of interest?

A

RICS Professional Statement on Conflicts of Interest (2017)
- Members must
Identify and manage conflicts
- keep records

31
Q

Benefits of pro-active management in settling disputes?

A

Anticipate problems before they arise and take steps to prevent issues before they happen
Show hard work and projects positive attitude

32
Q

What are some RICS approved ADR?

A

Property Redress Scheme
Centre for Effective Dispute Resolution
Arbitration

33
Q

What forms of ADR does Workman use

A

Centre for Effective Dispute Resolution
Property Redress Scheme

34
Q

What would you consider to select a form of dispute resolution?

A

Cost in proportion to scheme
Timescales
Impact on reputation

35
Q

How do you use RICS dispute resolution?

A

Fill out form / submit DRS form
£425 inc VAT

36
Q

Tell me about effective conflict management?

A

Proactive management
Awareness
Understand competence
Follow RICS guidance
Ensure you provide high standards

Will P (12 decks)

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