PE Conflict Avoidance, Management and Dispute Resolution Procedures Flashcards
What are ways to avoid dispues?
- Risk Managament
- Early warning signs
- Partnering techniques
- Clear and robust client briefings
What is 1. risk management? (a way to avoid dispute)
Identifying the causes of disputes to minimise or avoid them
What are 2. early warning signs in relation to dispute avoidance? (a way to avoid dispute)
Identifying early symptoms of problems
What are 3. partnering techniques? (a way to avoid dispute)
Common agreement/commitment by stakeholders to pursue mutual goals and objectives prior to commencing work on a project or instruction
How can 3. partnering help to avoid disputes? (a way to avoid dispute)
Identifies potentials risks and manages sources of conflict at the outset
What is Alternative Dispute Resolution?
Procedures to resolve conflicts between parties without resorting to litigation
What is litigation?
Process of parties taking legal action through the Courts
What governs litigation in the Courts?
Civil Procedure Rules
Can litigation be settled out of Court?
Yes - to avoid further costs based on the risks of proceeding to judgement
What are the issues with litigation?
- Public process so no confidentiality
- Strict procedures
- Costly
- Lay judges may not have expertise in property
What are the benefits of ADR?
- Cheaper than litigation
- Quicker than litigation
- Flexible process not governed by the Civil Procedure Rules
- Can be confidential
- Can involve specialists/experts rather than lay judges
What is mediation?
Confidential process where a neutral party facilitates negotiations between the parties
What is conciliation?
Confidential process where a neutral party facilitates negotiations between the parties and expresses their opinion on the dispute
What is adjucation?
Statutory UK dispute resolution procedure to provide an interim binding decision
What is arbitration?
Third party receives written evidence or verbal evidence at hearing from the parties’ representatives and makes a legally binding decision
What is expert determination?
Third party provides an expert opinion on the dispute
What is the relevant timeframe for adjucation?
28-42 days
Can mediation procedures be disclosed to Court?
No - they are undertaken on a without prejudice basis
What legislation introduced statutory adjucation?
Housing Grants, Construction and Regeneration Act 1996 (Construction Act 1996)
What happens after an adjucation interim decision is made?
Refer dispute to another process e.g. litigation, arbitration or mutual agreement
What is adjucation often described as?
Pay first, argue later mechanism
What is the aim of adjucation?
Preserve cashflow during construction
What type of claim is adjucation appropriate to use for?
- Interim payments
- Delay and disruption of the works
- Extensions of time for completion of the works
- The final account
- Breach of contract
- Termination of contract
- Professional negligence
What Act is Arbitration governed by?
Arbitration Act 1996
Can the parties agree the procedure for an Arbitration?
Yes - subject only to public interest safeguards and involvement of Arbitrator if they can’t agree
Which Act is Expert Determination governed by?
None - it’s purely governed by contract
Does an Arbitrator have a duty to investigate all relevant evidence?
No - they act on evidence submitted by the parties, but can draw attention to matters the parties may not be aware of
Does an Expert have a duty to investigate all relevant evidence?
Yes
Do the parties have to submit their own expert witness representations to an Expert?
No - unless the parties’ agree otherwise
What is disclosure and who can order it?
Arbitrator’s power to order disclosure of evidence
Can a third party require wintess attendance through the Courts?
Yes - only an Arbitrator can
Can a lease require an Arbitrator’s costs to be split 50:50?
No - an Arbitrator always has full discretion to Award costs
Does an Expert have power to determine costs?
Maybe - if the lease directs or the parties agree
Can you appeal an Arbitration Award?
Yes - under grounds S67-69 within 28 days of the Award being published
Under what grounds can you appeal an Abritration Award?
- Outside jurisdiction
- Serious irregularity
- Point of law
Can you sue an Expert for negligence?
Yes - can sue for damages/loss, but the Court won’t interfere with the determination
Will disclosure always be ordered?
No - only where it is proportionate and appropriate
What do RICS provide ADR services for?
- Commercial property rent reviews
- Construction adjucation
- Other construction or property disputes
- Rural rent reviews
- Mediation
- Non-rent disputes
- Dilapidations dispute
- Neighbourhood dispute
What were the Woolf reforms?
ADR should be considered in all court cases, but not necessarily used if it is not appropriate or reasonable
What were the Jackson reforms?
Reforms to reduce civil litigation and costs and increase access to justice
What are changes under the Jackson reforms?
- File cost budget
- File disclosure report
- Changes to part 36 offers
- Stringent timescales introduced
What does P35 of the CPR relate to and what is it?
Hot tubbing/concurrent evidence - judge chairs discussion with experts of same discipline/counsel with agenda based on Joint Statement
What is PACT?
Arbitration/Expert determination for agreeing lease renewal disputes out of Court
What were the implications of Jones v Kaney (2011)?
Expert witness can be sued for dishonesty or negligent misstatements
When acting as an Expert Witness, who is your duty towards?
The Court
Do you act as an Expert Witness in negotiations?
No - you act as a negotiator/advisor
Can an Expert Witness’ fee basis be performance-based/condition?
No
Do RICS provide any guidance on ADR procedures?
Yes
Do you need to check for COI if you are entering ADR/litigation proceedings?
Yes always
