Conflict Avoidance, Management and Dispute Resolution Procedures - Level 1 Flashcards
Name some different forms of ADR?
- Mediation
- Conciliation
- Negotiation
Name 3 forms of formal dispute resolution
- Arbitration
- Litigation
- Ajudication
What would you consider to select a form of dispute resolution?
- Cost in proportion to the claim
- Time scale
- Impact on business relationship and reputation
What is conciliation?
Dispute resolution similar to mediation.
- Independent party to aid an agreement.
- Conciliator has no authority to seek evidence or call witnesses.
- Conciliator can not make final decision
- A conciliator is there to encourage the two sides to come to an agreement between themselves. A mediator will suggest a solution.
What is mediation?
- Form of ADR
- Bringing in a neutral mediator to facilitate discussions between two parties
- To guide a decision which optimises the parties needs
- Carried out on a ‘without prejudice’ basis
- Mediator has no decision making authority
- RICS Guidance Note on Mediation 2014
What is the difference between conciliation and mediation?
A mediator is a neutral party who help rebuild a relationship and find a mutually agreeable solution. It is non-binding.
Conciliation is the same but different process. A conciliator is a figure of authority who parties turn to for guidance. The parties make the final decision and the conciliator makes suggestions.
What is negotation?
Parties come to an agreement through informal private negotiation process.
What is adjudication?
- UK statutory dispute resolution procedure
- Relatively quick process from submission of referral.
- Binding until dispute determined by litigation or arbitration.
- Seen as simplified arbitration process
Tell me about arbitration
- An arbitrator is appointed in a quasi-judicial role (administrative) with the Arbitration Act 1996.
- Certain conditions must be met; a genuine dispute or difference between parties.
- Parties are bound by the decision made
- Fast, cost-effective, confidential solution to disputes.
- The arbitrator bases his conclusion on the evidence provided by both parties.
Difference between arbitration and litigation
LOOK AT THE FERGUS BOOK?!?!?!?!?
What is conflict avoidance?
- Clear drafting of engagement documents e.g. lease or licence
- Carry out risk analysis and understand what could go wrong
- Managing expectations requires full understanding of the objectives
- Keep good records.
What are the three types of dispute resolution?
- Negotiation - problem solving between parties
- Mediation or conciliation - 3rd intervention which does not bind parties to a decision - guidance
- Adjudication process - An outcome is determined by 3rd party e.g. litigation or arbitration
What is ADR?
Alternative Dispute Resolution - dispute resolution techniques which processes and techniques which fall outside the scope of court litigation.
What are the advantages of ADR?
- Speed - take less time then going to court
- Cost - less money spent on professional fees
- A greater opportunity for negotiation
- Confidentiality - wont be publicised
What is an independent expert?
- Appointed by two parties (or President of RICS if a part of the RICS DRS). Has a duty to investigate the facts and can use their own knowledge.
- RICS Guidance Note on Independent Expert Determination 2016
- Expert is a specialist in the specific area
- Both parties are bound by the decision
- This process offers speed and specialist knowledge
What is Early Neutral Evaluation?
Use of an independent person, experienced in the subject matter of the dispute, to investigate and give their non-binding opinion
What is the RICS guidance for expert witnesses?
RICS Practice Statement ‘Surveyors Acting as an Expert Witness’ 2014
What is an expert witness?
An expert who provides evidence to a judicial or quasi-judicial body.
The expert witness’ overriding duty of care is to the court. not the client. but client pays fee.
When can a surveyor accept to be an expert witness?
When they have the appropriate knowledge, experience, qualifications and training appropriate for the case and no conflicts of interest
What was the Gardiner & Theobald Vs Jackson 2018 case?
Expert witnesses were reminded that a success-related fee is inappropriate
What was the Jones Vs Kaney 2011 case?
expert witnesses are not immune from civil action in relation to evidence they provide and they can be sued for negligence.
What is ‘Hot Tubbing’ ?
‘Hot Tubbing’ is where experts are sworn in to cases alongside each other and are given the chance to ask each other questions.
What is the RICS note on Acting as an Advocate?
RICS Professional Statement ‘Surveyor Acting as Advocates’ 2017
What is an advocate?
A surveyor who is appointed to act on behalf of their client at a judicial/tribunal hearing.
You have a duty towards your client, but an overriding duty to the tribunal to act fairly as set out in the professional statement.
