Recognising and avoiding – or managing and resolving – disputes are vital skills for surveyors, to pre-empt the need for legal action. How can APC candidates demonstrate the relevant competency?
Author:
02 December 2022
All APC candidates need to know about the mandatory level 1 competency Conflict avoidance, management and dispute resolution procedures.
As the RICS APC Pathway Guide confirms: 'This covers the recognition, avoidance, management and resolution of disputes, involving an awareness of different dispute resolution procedures and an understanding of the[ir] application … appropriate to the area and jurisdiction of professional practice.'
Some candidates may decide to take it to a higher practical level as a technical competency, requiring practical experience of doing at level 2 or advising at level 3.
Alternative dispute resolution (ADR): this refers to methods of resolving disputes other than litigation, such as adjudication and mediation. Typically, ADR is quicker and cheaper, and it can often preserve relationships between the parties. Through the Civil Procedure Rules (CPRs), the courts encourage parties to consider ADR before proceeding to litigation.
Bias: this is a real or perceived inclination for or against a person or group. If you are acting as an advisor, party representative or independent dispute resolver, such as an adjudicator or mediator, it is something that must be avoided. Therefore, surveyors must check for conflicts of interest before accepting any work in these capacities. The current edition of the RICS Conflicts of interest professional statement details how to identify, avoid and manage actual or potential conflicts.
Calderbank offer: this is a private and confidential offer made by one party to another party which is intended to settle a dispute. It must be a genuine offer, capable of being accepted. If the offer is not accepted it cannot be revealed to an independent dispute resolver, such as an arbitrator, until such time as the arbitrator has made their decision on the substantive dispute and all that is left is for them to decide how the costs of the arbitration are to be allocated. If the arbitrator's award is less than the amount offered in the Calderbank offer, the party which refused to accept the offer can be liable for most or all costs. It derives from Calderbank v Calderbank [1976] Fam 93, [1975] 3 All ER 333 (EWCA).
Disputes: causes of dispute in land, property and construction are various. Disputes between landlords and tenants concerning rents, service charges and dilapidations are typical. In construction, factors which give rise to disputes include poor payment practices, a lack of communication between contracting parties, unclear documentation or contracts and poor management. However, such disputes can be avoided in a variety of ways, as detailed throughout this article.
Early warning signs: contracting parties can adopt measures that provide early warning of emerging issues, such as reduced communication which could signal potential insolvency. Early warning signs can prove valuable in avoiding conflict arising going forward. They could be initiated through regular reporting, independent reviews and open and transparent communications between contracting parties.
Facilitative and evaluative mediation: mediation is essentially a negotiation to resolve a dispute, which is facilitated, or moderated, by a neutral third party. The role of a mediator is to work with both sides to help them engage in a structured and positive dialogue, with the mutual intention of achieving an acceptable settlement. There are two main models of mediation: facilitative and evaluative.
In the facilitative model, the mediator encourages meaningful dialogue between the parties, and ensures they maintain focus on achieving a positive outcome. The mediator asks questions, draws attention to common aims, helps the parties to understand each other's positions and interests, the strengths and weaknesses of their positions, and helps them find options to resolve their dispute. The facilitative mediator effectively facilitates discussion which leads to agreement and does not normally provide personal assessments of parties' positions or recommendations for settlement.
Evaluative mediation involves a mediator who is an expert in the subject matter in dispute and will do all that a facilitative mediator does. The mediator also provides their evaluations on the relative strengths and weaknesses of the parties' positions. An evaluative mediator can give the parties an impartial assessment of the likely outcome of the dispute if some or all the issues were to go to court. The evaluative mediator can also provide recommendations for settlement terms. The RICS Dispute Resolution Service (DRS) uses an analytical, commercial, restorative and expert mediation model (ACRE), based on the facilitative method.
Guidance: RICS publishes extensive guidance on dispute avoidance and resolution matters, including guidance for surveyors acting as: arbitrators, mediators, adjudicators, independent experts, expert witnesses and advocates. There is also guidance on conflicts of interest for surveyors acting as dispute resolvers. RICS guidance is a statement of good practice. Essentially it is non-binding, though chartered surveyors who do not comply with published guidance should only do so if they have good reason and can adequately explain why they have not complied.
