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
