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Dispute resolution
| Question | Answer |
|---|---|
| What are the main forms of ADR? | Arbitration Mediation Conciliation Tribunal Simplified arbitration service Expert determination |
| How was arbitration governed in the past? | When the AHA 86 was introduced it included its own arbitration code in Sch 11 which originated from the 48 act |
| Who was the arbitration process recently reformed by and what did they propose? | The Tenancy Reform Industry Group (TRIG) who proposed the complete removal of Sch 11 |
| What act introduced TRIGs proposals? | The Regulatory Reform Act 2006. |
| What replaced Sch 11 and from when? | The Arbitration Act 96 replaced Sch 11 and has been in place since 19/10/2006 |
| What does the Arbitration act allow for which AHA 86 does not? | more than one arbitrator to be appointed |
| Under which section of the AHA 86 requires the determination to be by a sole arbitrator? | s 84 |
| can an arbitrator be appointed from the agreement of both parties and under what circumstances? | yes - perhaps to ensure an arbitrator with known skills or experience is appointed |
| When parties are unable to agree on an arbitrator what s 84 provide? | That either party can apply to the President of the RICS to appoint an arbitrator |
| What did the Deregulation Act introduce? | s11 (3) (a) introduced third party determination as an alternative to arbitration |
| What does s33 of the Arbitration Act set out? | the general duties of the arbitrator |
| What does s33 (1) of the Arbitration Act require the arbitrator to do? | act fairly and impartially between the parties and adopt suitable procedures for the circumstances of the case, avoiding necessary delay or expense |
| What does s 40 of the Arbitration Act set out? | the general duties of the the parties |
| What are the general duties of the parties set out in s 40 of the Arbitration Act? | to do all things necessary for the proper and speedy conduct of the proceedings |
| Which section of the Arbitration Act sets out the criteria to validly appoint an arbitrator? | s14 (5) |
| What is the criteria for validly appointing an arbitrator under s14 (5) of the Arbitration Act ? | 1. Appointment must be in writing 2. either before or after the written appointment the arbitrator must accept 3. Arbitrator must have received notice of his appointment |
| What does s34 of the Arbitration Act provide the arbitrator to decide on? | All procedural and evidential matters subject to the agreement of both parties |
| What might the arbitration procedure include? | 1. A preliminary meetings 2. Evidence 3. Hearing and inspection 4. The award 5. Costs and calderbanks |
| In the arbitration procedure what would discussed at the preliminary meeting include? | An opportunity to bring both parties together to discuss the procedure (according s34 of the AA 96), timetable, fees and costs. |
| What sort of matters may be addressed at the preliminary meeting? | identifying where the dispute lies agreeing on the facts that can be agreed by both parties for rent reviews the comparable evidence any issues of law arrange viewing of the holdings |
| After the preliminary meeting what should the arbitrator do? | The arbitrator should write to the parties with what has been agreed in terms of the procedure and time table which the parties must comply with |
| What is the submission of evidence important to the arbitration procedure? | The arbitrator must determine the review from the evidence submitted, using his knowledge and experience to interpret the evidence and reach a conclusion. Each party is given the opportunity to cross examine the evidence submitted by the other |
| What does s 33 of the Arbitration Act prohibit? | In the duty of fairness the arbitrator may not reach a conclusion on the basis of assumptions and evidence that has not been processed - he may not go beyond the evidence submitted to him |
| What is the normal procedure of the hearing? | Subject to the direction of the arbitrator and agreement of the parties, hearing will usually proceed in a conventional court room fashion |
| How will the inspection usually be carried out? | Arbitrator will either be unaccompanied or accompanied by both parties. - the arbitrator may not inspect the holding with only one party? |
| What is the arbitration inspection not an opportunity for? | new evidence |
| When may the inspection take place? | either before of after the hearing |
| When will the arbitrator make his reward? | Once the written representations and the hearing is complete |
| How may the arbitrator make his award? | Either as a single award or in stages for more complex cases |
| What might the arbitrator be required to do if the parties reach an agreement during the proceedings? | he may be required to to record the settlement in an agreed award according to s51 of the AA96 |
| What does s54 of the Arbitration Act set out? | It sates how the award must be awarded e.g. in writing, including reasons and the date when the award was made. |
| Under s 68 of the Arbitration Act the award should have? | resolved all the issues and be final and unconditional |
| When considering costs and calderbanks what is good practise to do? | 1. bear in mind the costs identify the agreed/disagreed points asap2. costs can escalate when arbitrator is approached 3. parties likely to incur costs 4. Arbitration should be a remedy not a deterrent, time/expense can be saved via negotiations |
| Where to the costs occur in the arbitration procedure? | professional advise, application to the pres of the RICS, the arbitrator himself, the hearing and if there is an expert witness, his cost. |
| If the dispute is settled by agreement how are the costs settled? | Up to parties to decide how the costs will be split between them |
| If an arbitrator is involved in the decision what is it a good idea for the parties to do? | agree the treatment of costs between them |
| How does the arbitrator direct how the costs are paid? | As part of the award, arbitrator will direct how the costs will be split between the parties. |
| ss 59 and 63 of the arbitration act sets out the costs of arbitration includes what? | arbitration fees/expenses costs of his appointment costs to the party perusing the arbitration any costs of action to determine the proper amount of costs |
| What else can the arbitrator award other than his own costs? | he can allocate the parties costs between them or direct one party to pay all or part of the other costs. |
| What is a calderbank offer? | a powerful tool to manage negotiations and offer some protection to the parties as to costs particularly for rent reviews where the outcome may be a range of figures |
| How does a calderbank offer work? | A to the dispute pays a sum of money to the court as a settlement offer. B can take up that offer and the settle agreement without further litigation. If B doesnt accept, and after the case is heard, the court can award A to pay less even if B won |
| Why is it important a Calderbank offer is made without prejudice | So that the parties can explore the possibilities of an agreement without their offers being used against them as evidence. |
| What is mediation? | the process where the parties to the dispute agree to refer their dispute to a third party facilitator, often a company will carry out the negotiation |
| What does the mediator not do? | Decide on the dispute and there is no personal stake in the outcome |
| What is the mediator? | He is an independent neutral, not an expert |
| What will the mediator set out to do? | 1. Win the trust of the parties 2. facilitate communication 3. overcome emotional blockages 4. help the other party understand the others case 5. Probe each party's case/interest/position/strengths 6. Suggest new avenues 7. Overcome a deadlock |
| If a settlement is reached what will the mediator help to do? | Help to draw up a binding settlement agreement that maybe enforced in the courts - any settlement will not be legally binding otherwise |
| What is it important to do if an agreement is reached? | Important that the agreement has been properly documented so ensure it is legally binding on both parties |
| Why is mediation different to other formal methods of ADR? | mediation is not limited to the issue at hand e.g. rent, it can look at all the issues leading to a package settlement. |
| What does a mediator help the parties to do? | Helps them to reach their own solution - mediator cannot impose a settlement on the parties |
| What are parties more likely to be willing to do as a result of arbitration? | More willing to comply with the settlement which they have agreed themselves rather than one imposed upon them |
| Unlike arbitration, what are the parties free to do? | Agree to decide how to split the costs |
| What is a negative of mediation? | Unlike Arbitration, no guarantee a conclusion will be reached, but there are still the costs involved |
| What happens if no agreement is reached? | This will lead to more formal methods of ADR such as arbitration |
| What does mediation offer over arbitration? | Offers the opportunity to not only address the main issue, but also the underlying ones |
| What is conciliation? | It is an alternative to mediation. A person who can make a determination in relation to a matter/s in a dispute between the parties. |
| What can conciliation do over mediation? | Conciliation is able to make a non-binding determination, which may help the parties find a solution |
| What are some of the main issues that are dealt with at Tribunal? | 1. Tenancy succession applications 2. Application by LL for consent to operate notice to quit served on a tenant 3. Application by the LL for a certificate of bad husbandry 5. Application to provide fixed equipment |
| What does the tribunal include? | The hearing, the decision and any appeals |
| Why was the simplified arbitration service (SAS) introduced? | Introduced in light of the concerns regarding the delays of arbitration and the inadequacies of expert determination, the RICS developed the simplified process |
| What was the SAS developed to do? | developed for rural rent review disputes, intending to make the process more efficient and cost effective |
| What procedure does the SAS draw its foundations from? | The procedure applied by the court for small claims |
| What does the SAS include? | Informality, limited amount of expert evidence and a timetable that is short and cost effective |
| What does the SAS aim to do? | enable the parties to jointly opt for a procedure that is quick, transparent and evenly handed |
| What must the parties abide by in the SAS? | Parties agree to abide by the procedural rules set out by the RICS |
| Who appoints the SAS arbitrator and in accordance with what? | An arbitrator is appointed by the RICS and undertakes the process according to the procedural rules |
| What will the arbitrator first receive in the SAS? | 1.Receive and consider the written submissions from both parties 2. Undertake a site visit 3. Holds a meeting/hearing with both parties |
| What will the arbitrator decide is required or not in the SAS? | Arbitrator will consider whether any expert evidence is required |
| During the SAS hearing who may the arbitrator examine? | Any experts attending the meeting/hearing are examined by the arbitrator - there is no cross examination |
| When will the arbitrator for the SAS publish his decision? | The arbitrator will publish his decision within 10 days following the completion of the hearing/meeting unless agreed otherwise by the parties |
| How long does the SAS process take? | The main part of the process should cover more than 3 working days |
| What does the arbitrator charge for the SAS? | For three days he will charge £1000 per day as log as the parties abide by the rules and any directions made by the arbitrator |
| How are the costs of the SAS shared between the parties? | Shared equally between both parties |
| Expert determination was introduced by which act | The Deregulation Act 2015 S 11 (3) (a) |
| What is expert determination | A from of third party determination where the dispute resolution is is undertaken by an individual with specialist knowledge and experience that enables him to make the decision. |
| What is expert determination an alternative to? | Arbitration or litigation |
| How is an expert appointed? | They are appointed for their expertise in relation to the disputed issue |
| How is expert determination different to arbitration? | Expert determination has no general statutory framework |
| How is the experts role/tasks created? | Entirely by the appointing contract drawn up by the parties |
| How is the expert meant to act in order to determine the dispute? | Required to act fairly within his competence |
Created by:
Joph
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