Conflict Avoidance/Methods of dispute resolution

Question 1

What can you do to avoid conflict?

Answer 1

-Clear, concise, careful drafting of contract/lease/documents
-Understand what could go wrong and how misinterpretation could arise
-Understand client objectives -Manage expectations
-Negotiate contractual obligations carefully and transparently to avoid conflict later on/enable efficient resolution
-Keep good records

Question 2

What is conflict management?

Answer 2

Involves the use of processes, tools and skills to find ways to manage disagreements and disputes

Question 3

What is dispute resolution?

Answer 3

The resolution of a dispute between two or more parties

Question 4

What are the main factors to consider when selecting a method of dispute resolution?

Answer 4

cost, access, confidentiality and speed

Question 5

What is the most basic form of dispute resolution?

Answer 5

Negotiation- where the parties themselves negotiate a resolution (lower/no cost, quicker than litigation)

Question 6

What is the most complicated form of dispute resolution?

Answer 6

Litigation- formal legal process that uses the civil legal system to resolve a dispute that adopts a set of rules applied by the courts

Question 7

What is alternative dispute resolution (ADR)?

Answer 7

These are dispute resolution processes and techniques that fall outside the scope of court litigation

Question 8

What are the advantages of ADR?

Answer 8

-Speed- quicker then lengthy court processings
-Informality- outside a court
-Negotiation- more opportunity
-Cost- less money spent on professional fees for litigation
-Quality of decision making, outcome/award can be made by a surveyor rather than a judge
-Confidentiality

Question 9

You mention in your submission you understand the disadvantages of ADR, what would those be?

Answer 9

No binding decision for negotiation or mediation

Costs can still be high

Limited appeals

Question 10

Before choosing a method of dispute resolution what must you do?

Answer 10

Check the lease/contract between the parties as it may have a dispute resolution clause that specifies how disputes must be dealt with

Question 11

What is arbitration?

Answer 11

A method of alternative dispute resolution. Parties agree to resolve a dispute outside of court by referring to a neutral 3rd party who makes a legally binding decision.

Question 12

What do you know about arbitration?

Answer 12

-An arbitrator can decide a dispute acting in accordance with statute e.g. Aribtration Act 1996
-Binding decision
-Specialist knowledge of subject area
-Usually dealt with via written representations but can order a hearing
-Has the power to award costs
-Commonly used for rent review disputes

Question 13

What are the advantages of arbitration?

Answer 13

-Specialist knowledge of subject area
-Binding decision
-Can be fast, cost effective (compared to litigation) and confidential solution to a dispute
-Can appeal on three grounds (jurisdiction, point of law or serious irregularity)

Question 14

What are the disadvantages of arbitration?

Answer 14

-Arbitration fees are still costly
-May not be suitable for extremely complex cases
-Cannot be sued for negligence, but there are limited grounds for appeal

Question 15

What is independent expert determination?

Answer 15

• A method of ADR for property disputes. Subject matter expert who decides the dispute based on their expertise.

Question 16

What do you know about an independent expert determination?

Answer 16

• Under a duty to make their own investigations and use their knowledge and experience to make a decision
  -Often invite written representations from the parties
  -Appointed by agreement of the parties (may also be specifically set out in the lease/contract)
  -Binding decision
  -May be able to award costs depending on the contract between the parties
  -Commonly used for rent review disputes and potentially service charge disputes

Question 17

What are the advantages of independent expert determination?

Answer 17

-Specialist knowledge of subject area
-Binding decision
-Can be fast and confidential solution to a dispute
-Cheaper than litigation and arbitration

Question 18

What are the disadvantages of independent expert determination?

Answer 18

-Very difficult to overturn a determination (no appeal process)
-Fees are still costly

Question 19

What is PACT?

Answer 19

-Professional Arbitration on Court Terms
-A form of alternative dispute resolution (ADR) specific to business tenancy lease renewals under the LTA 1954
-Alternative to dispute resolution via County Court (only available if both parties agree)
-Can be used before or after formal lease renewal court proceedings have been issued
-A joint initiative between RICS and the Law Society for determination of disputed terms by a property specialist rather than county court judge
-Dispute resolver can act as an independent expert or an arbitrator- agreed between parties

Question 20

What are the advantages of PACT?

Answer 20

-Can be fast, cost effective and confidential solution to a dispute compared to litigation
-Decision is binding
-Decision made by a property specialist
-Parties can control the procedure

Question 21

What are the disadvantages of PACT?

Answer 21

-Costs can still be high
-Limited grounds for appeal

Question 22

What is the RICS Dispute Resolution Service?

Answer 22

The world’s oldest and largest provider of ADR services in property industry and provides dispute resolution/avoidance services including:

-Arbitration
-Independent expert determination
-Adjudication
-Dilaps Dispute Resolution
-Boundary dispute mediation service

Question 23

What is the difference between an independent expert and an expert witness?

Answer 23

Independent expert- a dispute resolver who decides a dispute

Expert witness- appointed to present evidence to a dispute resolver

Question 24

What is involved in acting as an expert witness?

Answer 24

-Primary duty is to the tribunal, not the party who has appointed them
-Should only accept the instruction if they have the knowledge, experience and qualifications for the instruction and no conflicts
-Must make a declaration and give a statement of truth in accordance with RICS guidance for Surveyors acting as expert witness (2014)
-Must be independent, unbiased, within expertise/experience, truthful
-Cannot be appointed on a success related fee basis
-May act as expert witness in rent review disputes or business tenancy renewals

Question 25

What is an advocate?

Answer 25

-Surveyor can represent a client in the role of advocate in front of some tribunals e.g. rent review disputes in front of arbitrator or independent expert (more common in Scotland) -Owes a duty to the client and to the tribunal to act fairly

Question 26

Who does an expert witness have a primary responsibility to?

Answer 26

To the tribunal/court, not to the party who has appointed them. Cannot be appointed on a success related fee basis

Question 27

Who does an advocate have a primary responsibility to?

Answer 27

Duty to the client and also the court/tribunal

Question 28

Name some forms of ADR?

Answer 28

Arbitration Independent Expert PACT Mediation Negotiation Adjudication -RICS Dispute Resolution Service can signpost professionals towards most appropriate method and person

Question 29

What's the difference between an arbitration and an independent expert determination?

Answer 29

Arbitrator is governed by statute (Arbitration Act 1996), whereas independent expert is governed by the contract. Arbitration is more formal, closer to court procedure than IED. Arbitrator can award costs, IED can only award costs if lease says so Independent expert undertakes own investigations & use their knowledge and experience, arbitrator uses written submissions from the parties. Arbitrator cannot be sued for negligence, IED can in theory (v hard to overturn determination).