Mandatory - Conflict Avoidance, Management, and Dispute Resolution (L1) Flashcards
How Might You Avoid a Conflict Arising in The First Place?
- Clear Contractual Obligations
- Proactive Conflict avoidance Analysis
- Managing Expectations
- Keeping Good Records
What are the Three Main Processes Available to Solve Disputes?
- Negotiation (Parties involved working it out)
- Mediation / Reconciliation (Third party intervention that doesn’t bind parties to a decision but assists the resolution)
- Adjunctive Process: An Outcome is determined by a third party, such as litigation or arbitration.
What is Alternative Dispute Resolution (ADR)
Dispute resolution processes that fall outside the scope of the court, they are used because they are quicker and less costly, and the outcome may be better informed (decided by a surveyor not judge).
Can You Give Some Examples of ADR Mechanisms?
(1) Mediation (RICS Guidance Note on Mediation 2014) – A neutral mediator is used to facilitate discussion between two parties. Mediator has decision authority, and cannot impose an outcome.
(2) Arbitration An Arbitrator with specialist knowledge is appointed under the Arbitration Act 1996 by the parties or RICS President. Parties are bound by the decision. The Arbitrator Cannot be sued for Negligence as they only use information provided by the parties. Their decision can be overruled by the Court of Appeal. Surveyors have to pass to Chartered Institute of Arbitrators Exams.
(3) Independent Expert An independent witness is appointed by the two parties (or by the president of the RICS if the two parties are using the RICS Dispute Resolution Service). They will have expert knowledge on the subject matter. Both Parties are bound by the decision. There is an RICS Panel of Independent Experts.
What Exams do Surveyors Need to Pass to Become An Arbitrator?
They need to qualify and pass the Chartered Institute for Arbitrators Exams.
What Document Has the RICS Published on Independent Experts?
The RICS Guidance Note on Independent Expert Determination, 2016.
What Document Has the RICS Published on Surveyors Acting as Expert Witnesses? And what is important to consider when acting in such a way?
RICS Practice Statement and Guidance Note Surveyors Acting as Expert Witnesses (2014)
The primary duty of care is to the Court or other dispute resolution panel, not to the Client, even though the client pays your fee.
Incentive fees are therefore not appropriate for a surveyor acting as an expert witness.
What must an Expert Witness Provide Prior to Starting Their Role?
A Statement of Truth and confirmation that they will act impartially and objectively.
What is Hot-Tubbing in the context of Dispute Resolution?
When Expert Witnesses are sworn in alongside each other and able to ask each other questions.
What Does it Mean for a Surveyor to Act as an Advocate?
It means that they are representing their client at a dispute resolution hearing or court hearing. Here they have a duty solely to the client, but are obliged to ensure that the integrity of the court and judicial process is respected.
What are the Key Themes of the RICS Guidance Note, Conflicts of Interest for Members Acting as Dispute Resolvers (2017)
- Integrity and Impartiality
