What is the difference between conflict avoidance and conflict management?
- Conflict avoidance is when you do not accept the instruction.
- Conflict management is where you accept the instruction and steps are agreed and put in place to manage the conflict such as information barrier. A written agreement is required to establish a conflict management.
Assuming that you wish to accept an instruction where a CoI has arisen, what info must you send to clients?
- The nature of the conflict, circumstances and other relevant info
- Proposal for dealing with the conflict - Information barrier
- Request written confirmation (Informed consent) from both clients that your firm can within accordance of the proposed procedure
- Monitor the conflict on a regular basis and notify clients if anything changes
What are some of the steps to try and avoid conflict ?
- Clear, concise and careful drafting of the contract or lease and associated documentation
- Understanding what could go wrong or how misinterpretation between parties might arise
- Managing all parties’ expectations by understanding their objectives and clearly communicating these, as well as implementing ‘early warning systems’, including serving of appropriate notices
- Negotiating contractual obligation carefully and transparently will help to avoid later conflict or at least enable their efficient resolution
- Keeping good records with a sufficient level of detail can often help to resolve conflicts before they escalate
What are the THREE main processes available in resolving disputes?
- Negotiation: problem-solving efforts of the parties themselves
- Mediation or conciliation: third party intervention which does not bind the parties to a decision but assists them to resolve difficulties
- Adjudicative processes: an outcome determined by a third party, such as litigation or arbitration
Name some of the ADRs relevant to your work? and give a brief description.
- Mediation: a trained mediator is appointed to facilitate the discussions with the goal of reaching a solution
- Expert determination: A third party, expert in the subject, is appointed to resolve a dispute
- Arbitration: A third party makes a binding decision on the dispute
can you name some of the advantages of Alternative Dispute Resolution ?
- Speed – takes less time than lengthy court proceedings following the Civil Procedure Rules
- Confidentiality
- Cost – less money spent on professional fees for litigation
- Quality of decision making – as outcome or award can be made by a surveyor rather than a judge
- Informality – outside a court
- Greater opportunity for negotiation
What are dispute handling procedures?
Procedures to handle disputes between parties
What is a dispute?
A disagreement / argument / controversy that can arise from a failure to comply with a contractual obligation that may occur of differing interpretation
Can you give me some characteristics/elements of mediation?
A neutral mediator is used to facilitate discussions.
It is informal and confidential.
Parties are not bound by the decision.
Conducted on a ‘without prejudice’ basis.
RICS Guidance Note ‘Mediation’ 2014.
What does ‘Without Prejudice’ mean?
It’s a term often used in the context of negotiations.
It means that a statement made without prejudice cannot be used as evidence in court, if the negotiation are not successful and end up to court.
It is used to encourage parties to speak freely and make concession in an effort to resolve the dispute, without prejudicing their legal position in the event that the settlement is not reached.
What are ADR?
Alternative Dispute Resolution - processes and techniques that fall outside the scope of court litigation
What are the various forms of DR?
Negotiation
Mediation and Conciliation
Expert Determination
Adjudication
Arbitration
Litigation
What are the characteristics/element of arbitration?
- Arbitrator have specialist knowledge
- They rely on evidence presented by the parties so these are more involved
- Can involve a hearing
- Their decision is binding but the decision can be overruled by the court of Appeal
- Often chose for a making a decision on a broad range of disputes, damages or contractual breaches
- Cannot be sued
What are the characteristics/element of Independent Expert Determination?
- In expert determination a third party is appointed (expert)
- They can review evidence but will often rely on their experience to determine an outcome, so parties have a more limited role
- Decision is based on a written submission so less formal
- Parties are bound by the decision
- Often chose for a making a decision on a particular area (i.e. lease renewal, valuation)
- Can be sued
How are IDE and arbitrators appointed?
They can be appointed by the parties but in some instances of the RICS, the appointment of an expert or arbitrator may be governed by the RICS DRS
What is an expert witness? can he be sued for negligence?
Someone called up to provide expert knowledge in court or in one of the ADR process
Must give independent and objective, unbiased opinions within the area of expertise.
They assist the court to make an informed decision so their duty is to the court (Statement of truth to confirm they will act impartially).
Can be sued for negligence.
What is an advocate?
(PS Surveyors Acing as Advocates 2017).
They act for their client at a judicial hearing/tribunal
Must be competent and uphold the integrity of the judicial system.
Can’t be sued for negligence.
What is the difference between an expert witness and an advocate?
Expert Witness:
- duty to court
Advocate:
- duty to client
What is the difference between an expert witness and an arbitrator?
A
Arbitration:
* Decision based on submissions of the parties
* Needs parties to submit evidence
* Cannot be sued
* Issues an ‘award’ during hearing
Independent Expert:
* Does not have to reach compromise – uses own knowledge and expertise
* Can be sued for professional negligence
* Issues a ‘determination’ in written form
What is negligence?
When a breach of duty to care occurs.
can a surveyor be sued for negligence?
Yes from either client or third party, when breached, and there is a loss, a claim for damages can arise.
What is conflict management?
Where you accept an instruction and provisions have been put in place to manage the conflict, i.e. with an information barrier, and the clients have provided informed consent.
What is informed consent?
Written confirmation from the parties to proceed, regardless of the the conflict.
Can only seek informed consent if you believe you can still act and its in the parties best interests.
How can a conflict be managed?
Using an information barrier.
Where the two surveyors are separated and files are kept separate and secure.
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