Conflict Avoidance

Question 1

How can you resolve disputes?

Answer 1

1) Negotiation – internal
2) Mediation – third party, non-binding intervention
3) Arbitration – third party determination, binding and final

Question 2

What is ADR?

Answer 2

Non-court based resolution to disputes

Question 3

What ADR processes are there?

Answer 3

Mediation, arbitration, Independent Expert

Question 4

What is mediation?

Answer 4

• Use of a independent third party mediator who facilitates discussions
• Confidential and informal process
• ‘without prejudice’ basis i.e. statements are not admissible in court as fact
• Mediator cannot make the final decision
• RICS Guidance Note in Mediation 2014

Question 5

What are the pros and cons of mediation?

Answer 5

Pro:

• Informal
• Mediator cannot make final decision
• Statements are made without prejudice
• Confidential

Cons

• Informal
• Mediator cannot make final decision

Question 6

What form of mediation does your firm use?

Answer 6

Consumer disputes: The Property Ombudsman

Commercial disputes: CEDR

Question 7

What is arbitration?

Answer 7

• Uses an expert in the area
• Can use their professional understanding of the field
• Has a semi-judicial role
• Parties are bound by the decision
• Arbitrator can’t be sued for negligence

Question 8

What are the pros and cons of arbitration?

Answer 8

Pros:

• Person is an expert in the field
• Arbitrator can use professional knowledge
• Bound by outcome

Cons

• Bound by decision -> have to go to court of appeal
• More formal process

Question 9

Can anyone be an arbitrator?

Answer 9

Need to pass the Chartered Institute of Arbitrators exams

Question 10

What Arbitration process does your firm use?

Answer 10

Arbitration Procedures for Surveying Disputes

Question 11

What is independent expert?

Answer 11

• Expert within the field
• Appointed by the two parties, the RICS President or RICS Dispute Resolution Service
• Parties bound by outcomes
• Can make own investigations
• Can use opinion and discretion
• Can be sued for negligence

Question 12

Pros and Cons of Independent expert?

Answer 12

Pros

• Expert in the area
• Investigates the situation
• Expert can use own opinion
• Bound by the outcomes

Cons

• Bound by decision
• More formal, takes longer

Question 13

What is an advocate?

Answer 13

Representing a client at a hearing

Question 14

Who does an advocate owe a duty of care?

Answer 14

To their client but must maintain integrity of the courts.

There is a professional statement on this

Question 15

What happens if a client is still not happy after arbitration? Can you sue the arbitrator?

Answer 15

Can go to court of appeal. Cannot sue an arbitrator.

Question 16

What is an expert witness?

Answer 16

Providing evidence to a judicial body

Question 17

Who does an expert witness owe their duty of care?

Answer 17

The court, not the client or anyone else

Question 18

Can an expert witness be held accountable?

Answer 18

Yes can be sued for negligence

Question 19

Would you act as an expert witness?

Answer 19

Would have regard to the practice statement

Only if I had the appropriate knowledge, skills, understanding, training and there are no conflicts of interest.

Question 20

Would you act as an arbitrator?

Answer 20

No - not passed the chartered institute of arbitrators exams