How to avoid conflict?
- Careful and clear documentation, contracts of leases
- Proactive risk analysis
- Clear communication and objectives
- Keeping good records with sufficient level of detail
How to manage conflict?
Process and tools to manage disagreements and disputes
What is ADR?
Alternative Dispute resolution
Way of resolving dispute without going to court.
What are the benefits of ADR?
Beneficial because: quicker, informality, cheaper, confidentiality and quality of decision (by expert rather than judge)
What are the different methods of ADR?
Mediation, arbitration, independent expert determination, adjudication or PACT.
What is mediation?
Uses a neutral mediator to facilitate discussions. Informal and confidential. No decision-making authority.
What is adjudication?
Used in construction contracts. Independent third party makes decision in 28 days. Binding but litigation or arbitration if appealed.
What is arbitration?
Governed by Arbitration Act 1996.
Specialist, might be appointed by RICS Dispute Resolution Service, will make final and binding decision.
Looks at evidence.
Can award costs to losing party.
Limited grounds to appeal.
Often used for rent reviews.
Can’t be sued for negligence.
What is independent expert determination?
Appointed by agreement of parties (stated in contract).
Specialist, might be appointed by RICS Dispute Resolution Service, will make final and binding decision.
Makes their own investigations to reach decision.
Contract governs costs.
Could be sued for negligence.
No appeal.
What is PACT?
Professional Arbitration on Court Terms (PACT)
ADR only for business tenancy renewals under L+T Act 54
Only used if both parties agree
Determine rent or other terms by property specialist not county judge
What is RICS DRS and what services are available?
RICS Dispute Resolution Service
Oldest and largest ADR services provider in built environment. Services include:
- Independent expert determination
- Arbitration
- Adjudication
- PACT
- CPO
- Dilapidations
- Ground Rent
What is an expert witness?
Expert Witness
- Surveyor can act as an expert witness in front of tribunal
- RICS practice statement and guidance note Surveyors acting as expert witnesses (2023), due to be updated to professional standard.
- Duty is to tribunal, not to party who appointed them
- Only act if independent, experienced, knowledgeable, truthful and unbiased
- RICS surveyor must make declaration and give statement of truth
- No performance related fees
What is an advocate?
Advocate
- Duty to client and also to tribunal to act properly and fairly
- RICS professional statement and guidance note Surveyors acting as advocates (2017)
- Advance case by fair and proper means
