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APC > Conflict Avoidance > Flashcards

Conflict Avoidance Flashcards

1
Q

How can conflicts arise?

A

A failure to comply with a contractual obligation or disagreement.

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2
Q

How do you deal with a conflict?

A
  1. Clear, concise communication
  2. Adopt proactive conflict avoidance risk analysis
  3. Manage the parties expectations
  4. Ensure transparency
  5. Keep records
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3
Q

What are the options to resolve a dispute?

A
  1. Negotiation
  2. Mediation
  3. Adjudicative process
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4
Q

What is ADR?

A

Alternative Dispute Resolution.

A process outside the court process.

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5
Q

What are the advantages of ADR?

A
  1. Quicker
  2. Cheaper
  3. More flexible
  4. Confidential
  5. Award/Determination by a surveyor rather than a judge.
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6
Q

What is Mediation?

A

Involves a neutral mediator who facilitates discussion between the parties to find a solution on a “Without Prejudice” basis.

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7
Q

What Mediation services do RICS offer?

A
  1. ACRE
  2. Consumer mediation
  3. Boundary disputes
  4. Business rent mediation
  5. online mediation
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8
Q

What is ACRE?

A

Analytical - analyse the circumstances
Commercial - encompass wide commercial as well as legal realities
Restorative - restoring business relationships
Expert - many years experience

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9
Q

What is consumer mediation?

A

For consumers who have bought goods or services from a trader and have exhausted the company’s complaint procedure.

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10
Q

What is an Arbitrator?

A
  • third party
  • governed by Arbitration Act 1996
  • only award within the evidence
  • appeal on three grounds; points of law; serious irregularity; challenge a tribunal decision
  • has power on costs & disclosure
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11
Q

What is an IE?

A
  • third party
  • determine rent outside the valuations
  • can only sue for negligence
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12
Q

Difference between an arbitrator and IE?

A

Evidence - Arbitrator bound IE not
appeal - Arbitrator yes, IE no
Disclosure - Arbitrator yes, IE no
Law - Arb 1996 Act/IE lease
Outcome - Award/Determination
Costs - Arbitrator has powers IE doesn’t unless specified within lease

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13
Q

RICS guidance note?

A

Surveyors acting as expert witnesses 4th edition (amended 2023) April 2014

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14
Q

What are key elements of the guidance note?

A
  1. Duty of care to the court, not the client
  2. Only accept instructions if you are competent
  3. Give an unbiased opinion
  4. Provide a statement of truth
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15
Q

What is an advocate?

A

Represents their client at judicial hearing/tribunal where their duty is solely to the client but must act in a way to maintain the integrity of the judicial process.

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16
Q

Is there any guidance on advocates?

A

Surveyors acting as advocates 2017

17
Q

Is there separate conflict guidance for Dispute Resolvers?

A

Conflicts of interests for member acting as dispute resolvers Nov 2020 (wef Feb 2021)

18
Q

What is the overriding principle of the conflicts of interest guidance?

A

Remain impartial from instruction to final decision

19
Q

How would you deal with a complaint?

A

This should already be set out with the complaints handling procedure within the TOE.

  1. Make contact and establish the information and have sympathy but do not admit fault.
  2. Acknowledge the complaint within 5 working days.
  3. Investigate and respond within 28 days.
  4. If the complainant is still not satisfied then provide the option to refer to an independent third party.
20
Q

What is partnering or alliancing?

A

A collaborative management approach that encourages openness and trust between parties.

21
Q

Why is good management important?

A

Important in avoiding any form of conflicts.

22
Q

How can reporting and proactivity reduce conflict?

A

Reports, such a pre negotiation reports reduce conflict as they set out all the applicable evidence / budget rent / ERV at the outset, managing client expectations.

Proactivity such as frequent client updates continue to manage client expectations meaning nothing comes as a shock.

23
Q

Give an example of each of the three pillars of dispute resolution.

A

Negotiation - power to settle disputes between the parties.

Mediation - Independent, neutral, third party to facilitate discussions.

Adjudicative process - appointment of an Independent Expert or Arbitrator or Litigation process.

24
Q

What is the difference between mediation and concilliation?

A

Same process but in conciliation, the parties will ask the third party to provide a non binding settlement proposal.

25
Q

What guidance are you aware of in relation to dispute resolution, ADR or roles in dispute resolution?

A
  • RICS Guidance - Conflict avoidance and dispute resolution in construction
    RICS Guidance - Mediation
    RICS professional statement - Surveyors acting as expert witnesses (4th edition)
26
Q

What tribunals are you aware of?

A

Upper Court and first tier.

27
Q

What is the upper court tribunal?

A

This reviews and decides appeals arising from the fist tier tribunal.

28
Q

What is first tier tribunal?

A

Settles legal disputes.

29
Q

What is the difference between conflict avoidance and dispute resolution?

A

Conflict avoidance is about being proactive in avoiding conflict i.e. risk analysis, clarity in documents etc.

Dispute resolution is about where a dispute has already arisen.

30
Q

What is a Scott Schedule and when would one be used?

A

A schedule used in court proceedings to clearly set out the allegations in dispute.

31
Q

Explain your negotiations for a lease renewal or rent review.

A

Following conflicts checks / pre-negotiation reports to the client / relevant notices - i would look to enter negotiations with the opposing party.

At lease renewal this involves establishing what lease term the opposing party is seeking / my client.

Rent review similar but must have regard to rent review provisions.

32
Q

Explain the role of an expert witness.

A

To give an opinion based on experience, knowledge and expertise. Overriding duty is to provide an independent, impartial and unbiased evidence to court or tribunal.

33
Q

How does the third party report process work?

A
  • Arbitrator/Independent Expert appointed (relevant conflict checks undertaken)
  • Third party will issue directions stating the timetable for written reports
  • Parties prepare an SOAF & Expert Witness reports that are sent to the third party
  • Third party send a copy of each parties written reports to one another
  • Both parties invited to comment via replies
    -Replies sent to third party
  • Third party reviews all documents and makes an award/determination
34
Q

How is a third party appointed?

A

Rent review - RICS DRS1 application
Lease renewal - generally agreement between the parties although RICS can make the appointment

35
Q

What is Concilliation?

A
  • Dispute resolution similar to mediation
  • Independent party to aid an agreement
  • Conciliator has no authority to seek evidence or call witnesses
  • non binding
36
Q

What is the difference between Arbitration and Litigation procedures?

A

Arbitration:
- Governed by 1996 Act
- must be agreed between both parties
- Private process

Litigation:
- 3 types; short hearing (1 month); document only (1 month) and full procedure
- Public process

APC (16 decks)

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