Conflict Avoidance and Dispute Resolution Procedures

  1. What are the 3 main processes available in resolving disputes?
    • Negotiation – problem solving efforts of the parties
    • Mediation or reconciliation – 3rd party intervention which does not bind the parties to a decision but assists them to resolve difficulties
    • Adjudication process – an outcome is determined by a third party, such as litigation and arbitration
  2. What are the advantages of Alternative Dispute Resolution Procedures? Name 6
    • Speed –quicker than lengthy court proceedings
    • Informality – outside of court
    • Negotiation - greater opportunity for negotiation
    • Cost – less money spent on professional fees for litigation
    • Quality – of the decision making, outcome made by surveyor and not a judge
    • Confidentiality
  3. What is mediation?
    • Use of a neutral mediator who facilitates discussions between 2 parties to find a solution
    • Confident and informal process
    • Has no decision making authority and cannot impose a resolution under the 2 parties
    • RICS Guidance Note in Mediation 2014
  4. What is arbitration?
    • Quasi-judicial role in accordance with Arbitration Act 1996
    • Parties are bound by the decision
    • They can order a hearing or consider written representatives
    • Will have specialist knowledge of the subject area
    • Can’t be sued for negligence, but decision can be over ruled by Court of Appeal on point of law only.
    • Must have passed Chartered Institute of Arbitrator Exams
    • PACT (Prof Arbitration on Court Terms) is a form of arbitration use for lease renewal disputes.
  5. What is an independent expert?
    • Is appointed by the two parties or president of the RICS
    • RICS GN – Independent Expert Determination 2016
    • Parties bound by decision
    • They are appointed to investigate the dispute and receive evidence from both parties
    • They can use their own opinion or evidence to decide upon award
    • Offers speed and specialist knowledge
  6. Who is the duty of care to for an expert witness?
    To the court or other dispute resolution panel.
  7. Who pays for an expert witness?
    The client
  8. What is an expert witness to provide?
    Objective and unbiased opinion related to their experience
  9. What case sets out rules of a success related fee?
    Gardiner and Theobald v Jackson 2018 – success related fee is inappropriate
  10. What is ‘hot tubbing’?
    Where experts are sworn into cases alongside each other and are given the chance to ask each other questions.
  11. What are the main areas of difference between an arbitrator and expert?
    • Disclosure
    • Evidence
    • Appeal
    • Law
    • Negligence
    • Outcome
    • Costs
Card Set
Conflict Avoidance and Dispute Resolution Procedures
Conflict Avoidance and Dispute Resolution Procedures