Matt - Conflict avoidance, management and dispute resolution procedures - Level 1 Flashcards
Is litigation a method of alternate dispute resolution?
No, it is a stage of dispute resolution, and is the stage that follows if ADR is unsuccessful.
This is a mistake on my submission when I say it is alternate.
What is adjudication?
This is a method of alternate dispute resolution, where an adjudicator is an expert in their field and will decide on matters brought to their attention.
What are the benefits of adjudication?
- Quick - decision within 28 days
- Cost efficient - either party can submit to adjudication and strict timescales helps with costs
Is the adjudication decision final?
No, it is binding immediately from when a decision is reached, it’s not necessarily final and may be reconsidered by negotiation, litigation or arbitration at a later date
What is arbitration?
This is a method of alternate dispute resolution, where an arbitrator is an expert in their field and will decide on matters brought to their attention.
The arbitrators decision is final.
What is the difference between adjudication and arbitration?
Adjudication is a quicker process, where as arbitration is a slower process and more costly as a result.
The arbitrators decision is final also, where as an adjudicators whilst is legally binding, it can be overturned by a court or arbitrator.
What is an ombudsman?
This is a person who is appointed to look into complaints about agent/organisations, if the dispute cannot be settled directly with the agent/organisation.
Ombudsman schemes are independent free and impartial.
What is mediation?
This is where parties opt to try and negotiate a settlement of the issues using a third party.
It is a confidential and informal process usually conducted without prejudice.
The mediator doesn’t make a decision but encourages dialogue between the parties, clarify each sides point and support their search for a solution.
What is an expert witness?
Similar to arbitration, expert determination is a private process where an independent technical expert is appointed to give their advice on a technical issue rather than a legal one.
The decision can be binding or non binding.
Who is the duty of an expert witness to?
Their overriding duty is to the court.
Is there any guidance by the RICS for acting as an expert witness?
RICS surveyors acting as expert witness 4th edition, practice statement and guidance note
What is the role of an advocate?
Their role is to show a court why their clients case should be preferred to the other party.
Who is the advocates overriding duty to?
Their duty is to their client
Is there any guidance by the RICS for acting as an advocate?
RICS surveyors acting as advocates (2nd edition) practice statement and guidance note
Can you act in the dual role of advocate and expert witness?
Yes but only in lower level tribunals such as the Valuation Tribunal for England as it can be proportionate.
It’s important to distinguish when acting in each role if the dual role is undertaken.
