Conflict Avoidance, Management & Dispute Resolution Procedures Flashcards
(29 cards)
What are some forms of disupte resolution
- Alternative Dispute Resolution
- Arbitration
- Independent expert
- Mediation
- PACT
How can you avoid conflicts?
- clear drafting of leases or associated documents
- adopting proactive conflict avoidance risk analysis
- manage all party expectations and understand objectives
- careful negotiations
- good record keeping
What are dispute resolutions a form of?
Conflict Management
What is the basic form of dispute resolution?
Negotiation
psrties egotiate an outcome
Which resolution process is the most intense?
Litigation
* Formal legal provess which uses the legal system to resolve a dispute
What are the advantages of Alternative Dispute Resolution (ADR)
- Speed - quicker than court proceedings
- Informality - outside a court
- Cost - less money on professional fees
- Greater room for negotiation
- Quality - outcome is made by a surveyor not judge
- Confidentiality
How do you determine which form of dispute resolution to adopt?
Many recent leases will have a clause which specifies how disputes are dealt with.
What statute does Arbitration refer to?
The Arbitration Act 1996
How does arbitration work?
- An award is produced to bind the parties
- An arbitratior has specialist knowlegde - if RICS appointed then highly trained
- Proceedings are written representations, arbitratior can order a hearing
- Arbitrator can award costs
- Arbitrators cannot be sued for negligence
What are the 3 grounds for appeal in Arbitration?
- Jurisdiction
- Point of Law
- Serious Irregularity
What are the benefits of Arbitration?
- Fast
- Cost effective
- Confidential
When is Arbitration commonly used?
Commercial property or rurual property rent reviews
Who can appoint an Independent Expert?
The agreement of the parties (possibly recorded in the contract/lease)
What does an Independent Expert do?
They have a duty to make their own investigations and use their knowledge and experience to make a decision
- they often invite written represnetations from the parties
Benefits to Independent Expert
- cost effective
- fast
- confidential
When is an Independent Expert often used
comemrcial property rent reviews or service charge disputes
What does PACT stand for?
Professional Arbitration on Court Terms
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What is PACT specific to?
business tenancy renewals under the LTA 54
WHat are some benefits to PACT?
- Can be an Arbitrator or Independent Expert
- Is someone who is proficient in the topic - i.e. joint between law society and RICS so can have a surveyor look at values and lawyer look at points of law
- greater control and flexibility
- Cheaper
What are some disadvantages to PACT?
- must have an agreement of both parties
- can be costly and time consuming
What are the 2 types of PACT application?
- Pre-issue PACT where you havent applied to court yet - have to make it clear that you need to agree to a written extension of the s.25 or s.26 notice or right to renewal will be lost for the tenant. Need a Written Agreement to enter into PACT in this case.
- Post-Issue Pact - You need a consent order from the court in this case to agree to stay proceedings until the resolution of PACT
What is the role of a neutral mediator?
to facilitate discussions between the two parties to explore if a solution can be found
Can a mediator make a decision?
No
A mediator has no decision-making authority and cannot impose a resolution upon the two parties
What the the oldest and largest provider of ADR?
RICS Dispute Resolution Service
