*EP APC Conflict Avoidance Flashcards
What are dispute handling procedures?
Procedures to handle disputes between parties
Dispute resolution processes fall into two major types:
- Adjudicative processes, such as litigation or arbitration, in which a judge, jury or arbitrator determines the outcome.
- Consensual processes, such as collaborative law, mediation, conciliation, or negotiation, in which the parties attempt to reach agreement.
What is a dispute?
A disagreement / argument / controversy
What are the main forms of dispute resolution?
Dispute resolution processes fall into two major types:
Adjudicative processes, such as litigation or arbitration, in which a judge, jury or arbitrator determines the outcome.
Consensual processes, such as collaborative law, mediation, conciliation, or negotiation, in which the parties attempt to reach agreement.
What are alternative dispute resolutions?
Alternative Dispute Resolution (ADR) is the procedure for settling disputes without litigation, such as arbitration, mediation, or negotiation.
ADR procedures are usually less costly and more expeditious.
What are the advantages of ADR?
- Speed
- Informality
- Lower cost
- Confidential
- Greater degree of negotiation
What are methods of ADR?
There are many different forms of ADR;
- including adjudication
- mediation
- expert determination.
What is mediation?
Mediation is a structured, interactive process where an impartial third party assists disputing parties in resolving conflict through the use of specialized communication and negotiation techniques.
It is informal and confidential.
Parties are not bound by the decision.
Conducted on a ‘without prejudice’ basis.
RICS Guidance Note ‘Mediation’ 2014 - CHECK
What does ‘Without Prejudice’ mean?
The without prejudice (WP) rule will generally prevent statements made in a genuine attempt to settle an existing dispute, whether made in writing or orally, from being put before the court as evidence of admissions against the interest of the party which made them.
What is arbitration?
A non-court alternative method of resolving disputes, where an arbitrator or panel of arbitrators is appointed by the parties to make a binding decision, from which there are very limited grounds of challenge.
Arbitrator is an appointed quasi-judicial judge.
Their decision is binding.
They have specialist knowledge.
Can’t be sued for negligence.
What is Independent Expert Determination?
Expert determination is a private process involving an independent technical expert. They make a binding decision on technical rather than legal issues and have the power to ask questions of the parties before rendering their decision.
An independent expert is appointed.
They have expert knowledge.
Parties are bound by the decision.
They review evidence but also use their own opinion and experience to determine outcome.
What is litigation?
Litigation is the process of taking a dispute to a court of law. If parties cannot agree between themselves about the fair and proper outcome of a dispute they will present their respective cases to a court for its judgment. It is a broad term that describes a long and sometimes complex process.
Court process.
Lots of different stages.
Negotiations can occur before the pre-trial stage.
Mediation can occur in the pre-trial review stage.
As a result, lots of cases don’t actually end up in court.
What is an expert witness?
Someone who provides expert knowledge in court.
Must give independent and objective, unbiased opinions.
Their duty is to the court.
Can be sued for negligence.
Can Surveyor’s act as expert witnesses?
Yes.
Must follow RICS Practice Statement: Surveyors Acting as Expert Witnesses 2014.
Have to be trained properly and have the experience and not be conflicted.
What is the difference between an expert witness and an advocate?
Expert Witness:
- duty to court
Advocate:
- duty to client
What is the difference between an expert witness and an arbitrator?
Expert witness:
- gives expert evidence
- they are not a judge - no power to award costs
- can be sued
Arbitrators:
- never gives expert evidence
- jurisdiction to allocate costs
- can’t be sued
In arbitration, the tribunal usually has jurisdiction to allocate the parties’ costs, with the general rule being that costs follow the event. An expert, however, has no power to award costs unless his instructions or the terms of the contract provide for it.
- EVIDENCE - Arb - acts on evidence provided/ IE - Duty to investigate and discover facts/ they can use their own knowledge.
- NEGLIGENCE - Arb - not liable for negligence / IE - can be liable for damages if negligent
- LAW - Arb - governed by Arbitration Act 1996 / IE - no relevant legislation
What is negligence?
When a breach of duty to care occurs.
Negligence, in law, the failure to meet a standard of behavior established to protect society against unreasonable risk.
When can a surveyor be sued for negligence?
a duty of care exists to clients and third parties.
When breached, and there is a loss, a claim for damages can arise.
Surveyors negligence claims need to prove three things:
- that the surveyor owed a duty of care
- that the surveyor breached that duty of care;
- suffered a financial loss.
What is a conflict of interest check?
Where you check your impartiality and objectivity prior to accepting an instruction.
What is a conflict of interest?
A situation where your impartiality and objectivity is impacted.
A conflict of interest arises in a situation where there may be an actual, perceived or potential risk that the professional judgement of an RICS-regulated firm or member will be compromised when undertaking an assignment.
Why do you conduct a COI check prior to accepting an instruction?
RICS require members to inform clients any conflicts before confirming appointment.
How do you conduct a conflict of interest check?
For every pending instruction an email is sent to the entire company with the clients details and the property address.
What does the RICS say regarding conflicts?
RICS Global Professional Statement: Conflicts of Interest 2017.
Members cannot act if there is a conflict, unless it can be managed and informed consent is given.
What are the three types of conflict?
Party conflict - work on same instruction for two parties
Own interest -
Confidential information - work between two parties that is confidential
What is conflict avoidance?
Where you take the necessary measures to mitigate a conflict of interest.
- Notify the client
- Decline the instruction
- or, continue with written permission from the client.
Conflict avoidance can be achieved with care and management in the preparation of documentation in order to avoid ambiguity.
What is conflict management?
Where you accept an instruction and provisions have been put in place to manage the conflict, i.e. with an information barrier, and the clients have provided informed consent.
What is informed consent?
Written confirmation from the parties to proceed, regardless of the the conflict.
Can only seek informed consent if you believe you can still act and its in the parties best interests.
How can a conflict be managed?
Using an information barrier if party conflict within AWH.
Where the two surveyors are separated and files are kept separate and secure.
What documents relates to conflicts and agency work within the UK?
RICS Professional Statement: Conflicts of Interest - UK Commercial Property Market Investment Agency 2017.
What are the principles of the RICS Professional Statement: Conflicts of Interest - UK Commercial Property Market Investment Agency 2017?
No dual agency.
If you are instructed to make multiple introductions of a commercial real estate investment opportunity.
Need to make it clear whether the agent is acting on an exclusive or non-exclusive basis.
If exclusive, need to write to other parties to inform them that you can no longer act for them.
Can you accept an agency instruction if you have a personal interest?
You can, if you believe you can act impartially and objectively.
However, need to declare facts before an instruction - disclose personal interests under Section 21 of the Estate Agents Act 1979.
