Conflict Avoidance and Dispute Resolution

Question 1

1) How can disputes be avoided?

Answer 1

• Clear, concise and careful drafting of TOE, HoTs, and lease documentation
• Understand what could go wrong
• Proactive conflict avoidance risk analysis
• Managing parties’ expectations
• Understand objectives and be able to clearly communicate them
• Negotiating clearly and transparently
• Good record keeping / audit trail

Question 2

2) What are the 3 main processes available in resolving disputes?

Answer 2

• Negotiation
• Mediation – non-binding 3rd party intervention to help resolve conflicts
• Adjudicative process – outcome determined by 3rd party such as arbitration or litigation

Question 3

3) What is ADR?

Answer 3

• Dispute resolution processes and techniques which fall outside of scope of court litigation

Question 4

4) What are the advantages of ADR?

Answer 4

• Speed – less time than court proceedings
• Informality
• Greater opportunity for negotiation
• Cost benefit
• Quality of decision making – can be made by surveyor rather than judge
• Confidentiality

Question 5

5) What are the various forms of ADR used in the UK?

Answer 5

• Mediation – neutral mediatory facilitates discussions, confidential and informal, no decision making authority
• Arbitration – arbitrator appointed in quasi-judicial role, parties bound by decision, will have specialist knowledge of subject area, cannot be sued for negligence, fast cost-effective resolution, surveyors can act as arbitrators subject to necessary qualifications, PACT (Professional Arbitration on Court Terms) used for lease renewals, decision can be overturned by Court of Appeal on point of law only, flexible – order hearing or written representation, can awards costs – successful party recovers costs, award contains full reasoning
  o Disadvantages = can only look at evidence submitted
• Independent expert – appointed by the two parties or RICS in some cases, has expert knowledge of subject matter of dispute, both parties bound by decision, appointed to investigate by reviewing evidence submitted by both parties as well as own opinion to decide on award, speed and specialist knowledge

Question 6

6) What is early neutral evaluation?

Answer 6

• Use of independent person experienced in subject matter to investigate and give non-binding opinion

Question 7

7) What does RICS say about acting as an expert witness?

Answer 7

• This is when surveyor provides evidence to judicial or quasi-judicial body
• RICS practice statement for surveyors acting as expert witnesses
• Expert witnesses’ primary and overriding duty of care is to court or dispute resolution panel, not to the client, even though client pays fee
• Should only accept if have appropriate knowledge, experience and qualifications and no conflicts
• Must provide statement of truth and confirmation will act impartially and objectively
• Cannot ‘cherry pick’ details of case
• Incentive (contingency fees) not allowed
• Can be sued for negligence
• ‘Hot-tubbing’ is where expert witnesses sworn into case alongside each other and given opportunity to ask each other questions
• Expert witnesses answer questions

Question 8

8) What are the disadvantages of using expert witness process?

Answer 8

• Adversarial (can damage professional relationships)
• More limited powers to allocate costs compared with arbitrator

Question 9

9) What does the RICS say about acting as an advocate?

Answer 9

• RICS practice statement and guidance note for surveyors acting as advocates
• Represents their client at a judicial hearing
• Duty solely to instructing client
• Advocates ask questions
• Must act in a way to maintain integrity pf judicial process
• Must be competent to act

Question 10

10) What is the RICS advice on conflicts of interest for members acting as dispute resolvers?

Answer 10

• RICS guidance note on conflicts of interest for members acting as dispute resolvers
• Overriding principle is that every dispute resolver should be impartial at the time of accepting an appointment and remain so during entire proceedings until final decision given or dispute otherwise terminated
• Key themes are independence and impartiality

Question 11

11) How can dilapidations disputes be settled?

Answer 11

Stages:
- Terminal, interim and final schedules
- Quantified demand – maybe be limited by diminution in value
- Response