Conflict avoidance, management and dispute resolution procedures Flashcards

1
Q

What can you do to try and avoid conflict (CD, U, M PE, N, KGR)?

A
  • Clear, concise and careful drafting of the contract or lease and associated documentation
  • Understanding what could go wrong or how misinterpretation between parties might arise
  • Managing all parties’ expectations by understanding their objectives and clearly communicating these, as well as implementing ‘early warning systems’, including serving of appropriate notices
  • Negotiating contractual obligation carefully and transparently will help to avoid later conflict or at least enable their efficient resolution
  • Keeping good records with a sufficient level of detail can often help to resolve conflicts before they escalate
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2
Q

What are the THREE main processes available in resolving disputes (N, M, A)?

A
  1. Negotiation: problem-solving efforts of the parties themselves
  2. Mediation or conciliation: third party intervention which does not bind the parties to a decision but assists them to resolve difficulties
  3. Adjudicative processes: an outcome determined by a third party, such as litigation or arbitration
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3
Q

What are the advantages of Alternative Dispute Resolution (ADR) (S, I, NO, C, Q, C)?

A
  • Speed – takes less time than lengthy court proceedings following the Civil Procedure Rules
  • Informality – outside a court
  • Greater opportunity for negotiation
  • Cost – less money spent on professional fees for litigation
  • Quality of decision making – as outcome or award can be made by a surveyor rather than a judge
  • Confidentiality
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4
Q

What is mediation (N, C/I, WP, powers, RICS guidance)?

A
  • Neutral mediator who facilitates discussions between the two parties to explore whether a solution can be found
  • A confidential and informal process
  • Mediation is usually conducted on a ‘without prejudice’ basis
  • Mediator has no decision-making authority and cannot impose a resolution upon the two parties
  • RICS Guidance Note on Mediation, 2014
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5
Q

What is arbitration (role/rules, binding?, powers (2), knowledge, negligence, practical benefits), and when can a Surveyor act as an Arbitrator?

A
  • Arbitrator appointed in a quasi-judicial role in accordance with the Arbitration Act 1996
  • Parties are bound by the decision
  • Can order a hearing or consider written representations
  • Will have specialist knowledge in the subject area
  • Cannot be sued for negligence but their decision can be over-ruled by the Court of appeal on a point of law only
  • Offers a fast, cost effective and confidential solution to a dispute
  • Surveyors can act as an arbitrator having passed the Chartered Institute of Arbitrators exams
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6
Q

What form of arbitration can be used for lease renewal disputes?

A

PACT (Professional Arbitration on Court Terms)

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7
Q

What is independent expert determination (appointment, knowledge, binding?, evidence/opinion, practical benefits), and what RICS guidance is available?

A
  • Independent expert is appointed by the two parties (or by President of the RICS undertaken by the RICS Dispute Resolution Service)
  • Expert has knowledge on the subject matter of the dispute
  • Both parties are bound by the decision
  • Independent expert is appointed to investigate the dispute and receive evidence from both parties
  • They can use their own opinion or evidence to decide upon the award
  • Process offers speed and specialist knowledge in the solution
  • RICS Guidance Note on Independent Expert Determination, 2016
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8
Q

Who could you use if you had a service charge dispute?

A

RICS panel of Independent Experts for Service Charge Dispute Resolution

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9
Q

What is early neutral evaluation?

A

Use of an independent person, experienced in the subject matter of the dispute, to investigate and give their non-binding opinion

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10
Q

What is an expert witness, what must one provide/how act, and what RICS guidance is available?

A
  • When a surveyor provides evidence to a judicial or quasi-judicial body
  • The expert must provide a Statement of Truth and confirmation that they will act impartially and objectively to the body
  • Should give an objective and unbiased opinion to matters relating to their experience - they cannot ‘cherry pick’ the details to fit the case
  • RICS Professional Statement for Surveyors acting as expert witnesses, 2014
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11
Q

Who is an expert witnesses primary duty of care to?

A

The court or other dispute resolution panel and not the client, even though the client pays the fee

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12
Q

What is ‘hot tubbing’?

A

Where expert witnesses are sworn in to cases alongside each other and are give the chance to ask each other questions

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13
Q

What should a surveyor consider when deciding to take on an instruction as an expert witness?

A

Should only accept instructions is they have the knowledge, experience, qualifications and training appropriate and have no conflicts

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14
Q

What is the difference between arbitration and independent expert determination (law, evidence, fees, liability, appeals)?

A
  • Arbitrator is governed by the Arbitration Act 1996, whereas Independent Experts are governed by Common Law
  • Arbitrator can only make decisions based on parties’ submission, whereas Independent Experts can make appropriate investigations and use their own expert judgement
  • Arbitrator has freedom to decide how the fees and costs are apportioned between the parties, whereas parties can decide how Independent Expert fees are apportioned
  • Arbitrator is not liable for negligence and cannot be sued, whereas an Independent Expert can be liable for liable
  • Ability to appeal arbitration under a point of law, whereas there is no right of appeal against an Independent Expert determination
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15
Q

Who is an Independent Expert appointed by (2 possibilities)?

A

Either by the President of the RICS or by the agreement of the parties

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16
Q

What is the role of an advocate (representing, duty, act), and what RICS guidance is available?

A
  • A surveyor acting for a client as an advocate, represents their client at a judicial hearing/tribunal
  • They have a duty solely to the instructing client
  • They must act in a way to maintain the integrity of the judicial process
  • They must be competent to act in this advocacy role
  • RICS Practice Statement and Guidance Note for Surveyors acting as advocates, 2017
17
Q

What is the key guidance issued by the RICS on conflict of interest for those acting in dispute resolution?

A

RICS Guidance Note on Conflicts of interest for members acting as dispute resolvers, 2017

18
Q

Who is the intended audience for RICS Guidance Note on Conflicts of interest for members acting as dispute resolvers, 2017?

A

Assist those who are appointed, either by the President of RICS or directly by the parties to a dispute, to act in any dispute resolution capacity

19
Q

What is the overriding principle (2 bullets) of RICS Guidance Note on Conflicts of interest for members acting as dispute resolvers, 2017?

A
  • Dispute resolvers should be, and seen to be, impartial at the time of accepting the instruction and during the entire proceedings
  • Retain independence and impartiality
20
Q

What is ADR/when introduced/what procedures does it include (4)?

A
  • ADR stands for Alternative Dispute Resolution, and was introduced as part of the Civil Procedure Rules 1998.
  • These Alternative Dispute Resolution procedures include:

o Negotiation.
o Mediation.
o Arbitration.
o Litigation.

21
Q

What are the Civil Procedure Rules 1998/why introduced?

A

• An improvement to the legal system, making it quicker, cheaper and easier to understand through the introduction of Alternative Dispute Resolution (ADR).

22
Q

How can you try to diffuse a dispute?

A

Negotiation, Mediation, Arbitration, Adjudication, Expert Witness

23
Q

Tell me about the principles of mediation. How do these compare with adjudication and arbitration?

A

A non-binding, private mediation between the two parties. A neutral person provides as an intermediary.
This method allows the parties to have some control on the outcome rather than it being imposed upon
them.