cards Flashcards
(36 cards)
What is a conflict?
Disagreement between parties which is usually protracted
How can conflict avoidance be achieved in the first place?
Clear and careful drafted lease /contract docs and associated documentation
Proactive conflict avoidance risk analysis - what could go wrong
Keeping good records - put things in writing
Following company policy & RICS Rules of Conduct
How could you deal with a conflict when it first arises?
Raise the issue with all arties and try resolve through communication and negotiation
What is the main processes for resolving disputes?
Negotiation - between parties themselves
Mediation / conciliation - 3rd party non-binding to assist with resolution
Adjudication - issue decided by a 3rd party - litigation / arbitration
What causes disputes in commercial property?
Leases
Service charges
Rent
Lease/rent review negotiations
What is dispute resolution?
Umbrella term to a number of processes to resolve conflicts
What should you do if negotiation breaks down and matter cant be rsolved?
Defer dispute to ADR - ideally mediation/conciliation to start
What are the key benefits of ADR?
Speed - compared to court proceedings
Better chance of negotiation
Informality
Lower cost
Better quality decision - surveyor decision rather than judge
Confidentiality
What are examples of ADR in the UK?
Mediation / conciliation
Arbitration
Independent Expert Determination
What are pros and cons of negotiation?
Pros
- Quick process
- Parties in control
Non-adversarial - preserve relationship
Cons
- Disclosure of info in good faith
- Stalling technique
- No guarantee of decision
What is mediation?
Where an independent third party is appointed to facilitate discussions between parties with a goal of reaching an agreement
What are the pros and cons of mediation?
Pros
- Efficient
- Confidential and informal
- Parties remain in control
Cons
- No guarantee of success
- Disclosure of info in good faith
What is conciliation?
Where a conciliator provides recommendations and solutions to help parties agree
- Same pros and cons as mediation
What is arbitration?
Where an arbitrator takes a quasi-judicial role in accordance with Arbitration Act (199^)
- Decisions legally binding
- Approved by both parties or RICS
What are the pros and cons of arbitration?
Pros
- Fast, cost effective and confidential
- Arbitrators have specialised knowledge of subject area
Cons
- Limited appeal rights
- Parties bear their own costs
What is PACT?
Professional Arbitration of Court Terms
- Form of arbitration for lease renewals
RICS/law society initiative
+ Alternative to litigation
+ Legally binding
What is the benefit of PACT?
Viable alternative to litigation
Cost effective
Flexible
Efficient
Expert decision
How can arbitration be overturned?
Litigation - in exceptional circumstances (e.g. fraud)
What is litigation?
Process of taking a dispute to a court of law
What is an independent expert determination?
Where an expert appointed by both parties or RICS president
- 3rd party expert who makes decisions based on info collected
What are the pros and cons of litigation?
Pros
- Guaranteed resolution
- Sets precedent
- Right of appeal
Cons
- Expensive
- Time consuming
- Damaging to reputation
What is adjudication?
What are the pros and cons of ind expert determination?
Pros
- Less adversarial
- Time and cost effective
- Expert decision based on own option and evidence
Cons
- No statutory back up
- Limited rights of appeal
What are the key requirements for expert witness?
Overriding duty to the court, not client
Must be competent
Must be objective and impartial
