How do you avoid conflict
Clear, concise, careful drafting
Adopting proactive conflict avoidance risk analysis
Negotiating contractural obligations and transparently to avoid later conflict
Keeping a good record with a sufficient level of detail
What is dispute resolution
Finding a solution to an issue between two or more parties, can range from negotiation to litigation
What is ADR
Alternative Dispute Resolution
- DR that falls outside of court litigation
What are the pros of ADR
Speed
Informal
Greater opportunity to negotiate
Lower cost
Confidential
What is an arbitrator
Arbitrator decides a dispute acting in accordance with statute (Arbit Act 1996)
Award
Specialist knowledge
Dealt via writen reps but arb can order a hearing
Can award costs
Cannot be sued for negligence
Can appeal on three grounds
Jurisdiction, point of law or serious irregularity
Can be fast, cost effectove and confidential
Common form of ADR
What is an independent expert
Can be appointment by agreement of parties (in lease)
Determination
Specialist knowledge
Under duty to make their own investigtaion
Can make written reps from parties
Can be sued for neg – very hard to overturn determination
Can be fast, cost effectove and confidential
Common form of ADR
What is PACT
Professional Arbitration under Court Terms
Form of ADR specific to business tenancies under L&T Act 1954
Alt to DR via county counrt
Only available if both parties agree and correct steps taken
Can be used before or after formal LR proceedings issues
Joint between RICS and Law society to determine disputed rent or non-rent terms by prop specialist (not county court judge)
Can act as arb or IE
Can be fast, cost effectove and confidential
What is mediation
Involves a neutral mediator who facilitates discussions to explore if a solution can be found
Confidential and informal
‘without prejudice’ basis
No decision making authority and cannot impose a resolution
What is the RICS Dispute Resolution Service and what are some services they provide
Worlds oldest and largest provider of ADR services in land, property and construction
Arbitrator
Indepdent Expert
PACT
Pubs Code Adjudicator Service
What are the roles a surveyor can play in DR process
Surveyor can act as expert witness or advocate
What is an expert witness
Acts in front of a tribunal
Must adhere to rules of the tribunal
Primary duty is to the tribunal and not the representing party
Must make a declaration and give statement of truth in accordance with RICS guidance
Must be independent unbiased within their expertise and knowledge, truthful (whole truth), not exaggerated and recognize alt views
Cannot be appointed on a success fee basis
Little no weight applied to evidence if bias in instructing firm
RR disputes, tenancy renewals…
What was raised in Feb 24
Practice alert feb 24
Increased concern that EW functions were not to quality
Must adhere to the current RICS Practice Statement and Guidance Note – Surveyors acting as expert witnesses Feb 23
What is an advocate
Can rep client as an advocate in certain tributnal (rr)
Duty of care to client, tribunal and must act fair and properly
Can advance their case by all fair and proper means but not allow their integrity or professional standards to be compromised, not deceive or misrepresent should provide a valuation but not offer an opinion
What RICS guidance applies to advocates
RICS Practice Statement and Guidance Note – Surveyors acting as advocates 2017
What RICS guidance applies to Expert witnesses
RICS Practice Statement and Guidance Note – Surveyors acting as expert witnesses Feb 23
