Conflict Avoidance

Question 1

How may failure to comply with contractual obligation arise?

Answer 1

Different interpretations of the contract EG in construction or in leases

Question 2

What happens if you fail to avoid conflicts?

Answer 2

incur costs in management and resolution

Question 3

How to avoid conflicts?

Answer 3

• clear, concise drafting of lease
• by anticipating what could go wrong/be misinterpreted
• managing expectations with clear communication
• good record keeping to help resolve conflicts prior to them escalating

Question 4

Dispute Resolution

Answer 4

1. Negotiation - between parties
2. Mediation - third party intervention
3. Adjudicative Process - binding 3rd party outcome EG arbitration or independent expert determination

Question 5

Dispute Resolution

Answer 5

1. Negotiation - between parties
2. Mediation - third party intervention
3. Adjudicative Process - binding 3rd party outcome EG arbitration or independent expert determination

Question 6

Benefits of ADR over Court?

Answer 6

• faster
• informal
• greater opportunity for negotiation
• cheaper
• better quality decision (surveyor not judge)

Question 7

Mediation

Answer 7

• neutral mediator facilitates discussions
• informal and confidential
• ‘without prejudice’ basis
• no binding outcome

RICS Guidance Note in Mediation 2014

Question 8

Arbitration

Answer 8

• appointed under Arbitration Act 1996
• parties are bound by decision
• cannot be sued for negligence but decisions can be overruled by Court on point of law
• surveyors act as Arbitrators once completed Chartered Institute of Arbitrators Exams
• PACT used for lease renewal disputes

Question 9

Independent Expert Determination

Answer 9

• Independent Expert appointed by the two parties or the RICS President
• has expert knowledge of dispute subject and can look at evidence
• parties bound by decision

RICS Guidance Note on Expert Determination 2016

Note: there is RICS panel of independent experts for service charge dispute resolution

Question 10

Expert Witness

Answer 10

• primary duty of care is to Court (used at lease renewals)
• surveyor should only act as Expert Witness if got knowledge, experience and training and no conflicts of interest
• must act impartially
• can be sued for negligence

RICS Practice Statement Surveyors Acting as Expert Witnesses 4th Edition 2014

Question 11

Advocate

Answer 11

• duty to instructing client (act on their behalf)
• maintain integrity in judicial process
• must be competent

RICS Professional Statement Surveyors Acting as Advocates 2017

Question 12

RICS Guidance Note Conflicts of Interest for Members Acting as Dispute Resolvers 2017

Answer 12

• aimed at those appointed to resolve dispute
• always be impartial and independent