Conflict Avoidance

Question 1

What are Adjudicators?

Answer 1

Legally-appointed officials who use their own knowledge and legislation to reach legally binding decisions

Question 2

How do parties handle Adjudicator fees and expenses?

Answer 2

Parties agree to Adjudicators fees and expenses and split it between them

Question 3

What is the nature of decisions made by Adjudicators?

Answer 3

Decisions are temporary, typically lasting until the end of the contract or practical completion

Question 4

Can an Adjudicator award costs?

Answer 4

No, unless costs were already agreed upon

Question 5

In which type of disputes are Adjudicators usually used?

Answer 5

Construction payment disputes

Question 6

What is the mechanism described for Adjudicators in construction disputes?

Answer 6

Pay now argue later / quick and dirty mechanism

Question 7

Why is adjudication particularly relevant in construction?

Answer 7

Parties cannot contract themselves out of it

Question 8

How are Adjudicator decisions enforced?

Answer 8

Decisions are enforced by Courts

Question 9

What are the strict timescales for adjudication decisions?

Answer 9

28 days, extendable to 42 days if parties agree

Question 10

What is the cost advantage of using Adjudication?

Answer 10

Lower cost than other formal processes

Question 11

What is the primary concept behind using Adjudicators?

Answer 11

To protect/maintain cash flows so one party doesn’t withhold payments for long periods of time

Question 12

For which situations is adjudication typically used?

Answer 12

Interim payments, time extensions, delayed works, final account

Question 13

What does Alternative Dispute Resolution (ADR) refer to?

Answer 13

Methods of resolving disputes other than litigation, such as adjudication and mediation.

Question 14

What are the benefits of ADR?

Answer 14

Quicker and cheaper resolution, preserves relationships between parties.

Question 15

What do the Sheriff Court - Civil Procedure Rules encourage?

Answer 15

Parties to consider ADR before proceeding to litigation.

Question 16

Define bias in the context of dispute resolution.

Answer 16

A real or perceived inclination for or against a person or group.

Question 17

Why must surveyors check for conflicts of interest?

Answer 17

To avoid bias when acting as an advisor, party representative, or independent dispute resolver.

Question 18

What can cause disputes in land, property, and construction?

Answer 18

Typical causes include rents, service charges, dilapidations, poor payment practices, and lack of communication.

Question 19

What are early warning signs in contracting parties?

Answer 19

Reduced communication which could signal potential insolvency.

Question 20

What is the role of a mediator in facilitative mediation?

Answer 20

Encourages meaningful dialogue and helps parties understand each other’s positions.

Question 21

What is the aim of evaluative mediation?

Answer 21

Provides evaluations on the strengths and weaknesses of the parties’ positions.

Question 22

What does the RICS Dispute Resolution Service (DRS) use?

Answer 22

An analytical, commercial, restorative and expert mediation model (ACRE).

Question 23

What is arbitration?

Answer 23

An ADR method for resolving commercial disputes outside of the courts.
Parties appoint expert arbitrator or arbitrators and each party presents evidence for their side of the dispute.
Arbitrator ultimately makes a binding decision - written.

Question 24

What is an arbitral award?

Answer 24

A binding decision made by the arbitrator.

Question 25

What distinguishes an independent expert from an expert witness?

Answer 25

An independent expert makes a binding decision, while an expert witness provides testimony.

Question 26

What governs arbitration proceedings?

Answer 26

The Arbitration Act 1996.

Question 27

What is required for a written agreement in ADR methods?

Answer 27

The decision must be conveyed in writing by the appointed neutral third party.

Question 28

What is the role of an ombudsman?

Answer 28

Handles disputes in a particular sector and aims to improve standards. - Is a RICS-approved mechanism for use in RICS regulated firms complaints handling procedures.

Question 29

What is an example of an ombudsman scheme?

Answer 29

The Property Ombudsman, which resolves disputes between consumers and property agents.

Question 30

What is the overriding duty of an expert witness?

Answer 30

To the judge or tribunal over and above any duty owed to their client.

Question 31

Fill in the blank: An independent expert must be both _______ and an expert in the disputed subject matter.

Answer 31

impartial

Question 32

Does a facilitative mediator normally provide assessments or recommendations for settlement?

Answer 32

No

Question 33

Can an evaluative mediator provide an impartial assessment and recommendations for settlement terms

Answer 33

Yes - on likely outcomes if the matter was to go to court.

Question 34

What is Independent Expert Determination?

Answer 34

- Independent expert appointed to make binding decision - usually makes decision based on evidence provided from both parties personal enquiries and knowledge of subject matter and legislation. Has to be both impartial and expert on the subject.