Conflict Avoidance Flashcards
(41 cards)
What are dispute handling procedures?
Procedures to handle disputes between parties
What is a dispute?
A disagreement / argument / controversy
What are the main forms of dispute resolution?
- Negotiation
- Mediation / conciliation
- Adjudicative process
What are alternative dispute resolutions?
Dispute resolutions that fall outside the scope of court litigation.
What are the advantages of ADR?
- Speed
- Informality
- Lower cost
- Confidential
- Greater degree of negotiation
What are methods of ADR?
- Mediation
- Arbitration
- Independent Expert Determination
What is mediation?
A neutral mediator is used to facilitate discussions.
It is informal and confidential.
Parties are not bound by the decision.
Conducted on a ‘without prejudice’ basis.
RICS Guidance Note ‘Mediation’ 2014.
What does ‘Without Prejudice’ mean?
Usually used in mediation and in written and verbal communication.
Basically means that the parties, although they are trying to revolve the dispute, they are not admitting to any part of the case or waiving any of their rights.
What is arbitration?
Arbitrator is an appointed quasi-judicial judge.
Their decision is binding.
They have specialist knowledge.
Can’t be sued for negligence.
What is Independent Expert Determination?
An independent expert is appointed.
They have expert knowledge.
Parties are bound by the decision.
They review evidence but also use their own opinion and experience to determine outcome.
What is litigation?
Court process.
Lots of different stages.
Negotiations can occur before the pre-trial stage.
Mediation can occur in the pre-trial review stage.
As a result, lots of cases don’t actually end up in court.
What is the difference between litigation and arbirtation?
Litigation:
- can’t choose judge
- public
- lower cost
- open court
Arbitration:
- can choose judge
- confidential
- private court
- higher cost as pay for judge too
What is an expert witness?
Someone who provides expert knowledge in court.
Must give independent and objective, unbiased opinions.
Their duty is to the court.
Can be sued for negligence.
Can Surveyor’s act as expert witnesses?
Yes.
Must follow RICS Practice Statement: Surveyors Acting as Expert Witnesses 2014.
Have to be trained properly and have the experience and not be conflicted.
What is an advocate?
They act for their client.
Must be competent and uphold the integrity of the judicial system.
Can’t be sued for negligence.
What RICS documents relate to advocates?
RICS Professional Statement: Surveyor’s acting as Advocates 2017
What is the difference between an expert witness and an advocate?
Expert Witness:
- duty to court
Advocate:
- duty to client
What is the difference between an expert witness and an arbitrator?
Expert witness:
- gives expert evidence
- they are not a judge
- can be sued
Arbitrators:
- never gives expert evidence
- they are a judge
- can’t be sued
What is negligence?
When a breach of duty to care occurs.
When can a surveyor be sued for negligence?
Yes, a duty of care exists to clients and third parties.
When breached, and there is a loss, a claim for damages can arise.
What is a conflict of interest check?
Where you check your impartiality and objectivity prior to accepting an instruction.
What is a conflict of interest?
A situation where your impartiality and objectivity is impacted.
Why do you conduct a COI check prior to accepting an instruction?
To ensure I can be impartial and objective throughout the instruction.
How else would you conduct a conflict of interest check if you didn’t have a database?
I would email my team and my company to ensure there has been no prior involvement, or the extent of the involvement.