Conflict avoidance, management and dispute resolution procedures

Question 1

What are the main methods of dispute resolution?

Answer 1

Courts and Tribunals
Arbitration
Expert Determination

Question 2

What are alternative methods of dispute resolution?

Answer 2

ADR = Mediation, Negotiation, Independent Expert Determination, Early Neutral Evaluation, Conciliation

Question 3

What is the purpose of the RICS DRS?

Answer 3

TO:

-Provide training to its members for DRS
-Qualification and accreditation such as - as Arbitrators or Mediators
-Provide DR and avoidance services
-Promote ADR - such as mediation, early neutral evaluation and negotiation.

Question 4

What procedures do you adopt to avoid disputes?

Answer 4

Clear TOB + Effective communication + Accutate record keeping + Issuing of written correspondance to confirm any actions/decisions being taken in relation to instructions + following RICS standards and professional guidance. When negotiating use of ‘without prejudice/ without prejudice save as to costs’

Question 5

What is mediation?

Answer 5

Form of dispute resolution that is entered into by the consent of both parties. 3rd party mediator is appointed to resolve the dispute and assists in a supported negotiation to reach an acceptable outcome. Mediation is an informal process => flexible approach to reach outcome + maintain relationships. Mediators have no legal authority or power to instruct either party

Question 6

What is Independent Expert Determination?

Answer 6

Form of dispute resolution which sees the matter settled by an individual using their expertise to consider the evidence and arguments to provide a solution. The solution the ED reaches will be final and binding (so long as the terms of the expert’s appointment by the parties is so).

Question 7

What is Arbitration?

Answer 7

Refers the dispute to an Arbitrator who is required to judge the evidence provided by the parties in a quasi-judical way. Operates within a statutory framework (arbitration Act 1996).

Question 8

What are the differences between an Arbitrator and Expert?

Answer 8

Arbitration is governed by the Arbitration Act 1996, an Expert by the lease

An Expert has a duty of investigation, an Arbitrator acts only on the evidence submitted by the parties (whilst also drawing their attention too there matters they may not be aware of)

An Arbitrator must refer to the parties’ evidence, submissions aren’t always required for Expert Determination

An Arbitrator always has discretion on costs, an Expert only has power if the lease reserves this

There is no right of appeal for an Expert (although the Court may set aside the Determination in limited circumstances), an Award can be challenged under the 1996 Act

An Arbitrator is not liable for negligence if they acted in good faith, an Expert can be liable in damages for losses sustained through negligence