Conflict avoidance, management and dispute resolution procedures

Question 1

What can you do to try and avoid conflict?

Answer 1

• Clear, concise and careful drafting of the contract or lease and associated documentation
• Understanding what could go wrong or how misinterpretation between parties might arise
• Managing all parties’ expectations by understanding their objectives and clearly communicating these, as well as implementing ‘early warning systems’, including serving of appropriate notices
• Negotiating contractual obligation carefully and transparently will help to avoid later conflict or at least enable their efficient resolution
• Keeping good records with a sufficient level of detail can often help to resolve conflicts before they escalate

Question 2

What are the THREE main processes available in resolving disputes?

Answer 2

1. Negotiation: problem-solving efforts of the parties themselves
2. Mediation or conciliation: third party intervention which does not bind the parties to a decision but assists them to resolve difficulties
3. Adjudicative processes: an outcome determined by a third party, such as litigation or arbitration

Question 3

What are the advantages of Alternative Dispute Resolution (ADR)?

Answer 3

• Speed – takes less time than lengthy court proceedings following the Civil Procedure Rules
• Informality – outside a court
• Greater opportunity for negotiation
• Cost – less money spent on professional fees for litigation
• Quality of decision making – as outcome or award can be made by a surveyor rather than a judge
• Confidentiality

Question 4

What is mediation?

Answer 4

• Neutral mediator who facilitates discussions between the two parties to explore whether a solution can be found
• A confidential and informal process
• Mediation is usually conducted on a ‘without prejudice’ basis
• Mediator has no decision-making authority and cannot impose a resolution upon the two parties
• RICS Guidance Note on Mediation, 2014

Question 5

What is arbitration?

Answer 5

• Arbitrator appointed in a quasi-judicial role in accordance with the Arbitration Act 1996
• Parties are bound by the decision
• Can order a hearing or consider written representations
• Will have specialist knowledge in the subject area
• Cannot be sued for negligence but their decision can be over-ruled by the Court of appeal on a point of law only
• Offers a fast, cost effective and confidential solution to a dispute
• Surveyors can act as an arbitrator having passed the Chartered Institute of Arbitrators exams

Question 6

What form of arbitration can be used for lease renewal disputes?

Answer 6

PACT (Professional Arbitration on Court Terms)

Question 7

What is independent expert determination?

Answer 7

• Independent expert is appointed by the two parties (or by President of the RICS undertaken by the RICS Dispute Resolution Service)
• Expert has knowledge on the subject matter of the dispute
• Both parties are bound by the decision
• Independent expert is appointed to investigate the dispute and receive evidence from both parties
• They can use their own opinion or evidence to decide upon the award
• Process offers speed and specialist knowledge in the solution
• RICS Guidance Note on Independent Expert Determination, 2016

Question 8

Who could you use if you had a service charge dispute?

Answer 8

RICS panel of Independent Experts for Service Charge Dispute Resolution

Question 9

What is early neutral evaluation?

Answer 9

Use of an independent person, experienced in the subject matter of the dispute, to investigate and give their non-binding opinion

Question 10

What is an expert witness?

Answer 10

• When a surveyor provides evidence to a judicial or quasi-judicial body
• The expert must provide a Statement of Truth and confirmation that they will act impartially and objectively to the body
• Should give an objective and unbiased opinion to matters relating to their experience - they cannot ‘cherry pick’ the details to fit the case
• RICS Professional Statement for Surveyors acting as expert witnesses, 2014

Question 11

Who is an expert witnesses primary duty of care to?

Answer 11

The court or other dispute resolution panel and not the client, even though the client pays the fee

Question 12

What is ‘hot tubbing’?

Answer 12

Where expert witnesses are sworn in to cases alongside each other and are give the chance to ask each other questions

Question 13

What should a surveyor consider when deciding to take on an instruction as an expert witness?

Answer 13

Should only accept instructions is they have the knowledge, experience, qualifications and training appropriate and have no conflicts

Question 14

What is the difference between arbitration and independent expert determination?

Answer 14

• Arbitrator is governed by the Arbitration Act 1996, whereas Independent Experts are governed by Common Law
• Arbitrator can only make decisions based on parties’ submission, whereas Independent Experts can make appropriate investigations and use their own expert judgement
• Arbitrator has freedom to decide how the fees and costs are apportioned between the parties, whereas parties can decide how Independent Expert fees are apportioned
• Arbitrator is not liable for negligence and cannot be sued, whereas an Independent Expert can be liable for liable
• Ability to appeal arbitration under a point of law, whereas there is no right of appeal against an Independent Expert determination

Question 15

Who is an Independent Expert appointed by?

Answer 15

Either by the President of the RICS or by the agreement of the parties

Question 16

What is the role of an advocate?

Answer 16

• A surveyor acting for a client as an advocate, represents their client at a judicial hearing/tribunal
• They have a duty solely to the instructing client
• They must act in a way to maintain the integrity of the judicial process
• They must be competent to act in this advocacy role
• RICS Practice Statement and Guidance Note for Surveyors acting as advocates, 2017

Question 17

What is the key guidance issued by the RICS on conflict of interest for those acting in dispute resolution?

Answer 17

RICS Guidance Note on Conflicts of interest for members acting as dispute resolvers, 2017?

Question 18

Who is the intended audience for RICS Guidance Note on Conflicts of interest for members acting as dispute resolvers, 2017?

Answer 18

Assist those who are appointed, either by the President of RICS or directly by the parties to a dispute, to act in any dispute resolution capacity

Question 19

What is the overriding principle of RICS Guidance Note on Conflicts of interest for members acting as dispute resolvers, 2017?

Answer 19

• Dispute resolvers should be, and seen to be, impartial at the time of accepting the instruction and during the entire proceedings
• Retain independence and impartiality