Why understanding ADR is mandatory for surveyors

It is a fact of life that people will inevitably disagree with other people. When it comes to the built and natural environment, disputes are an everyday occurrence. People fall out over matters such as property rents, construction costs, service charges, compensation for compulsory purchase, land boundaries and much more. 

When people are involved in potential and real disputes, the skills of RICS members are extremely valuable. While most chartered surveyors are not legal professionals, many of them often undertake roles which draw on their specialist knowledge and experience. The professional help and advice provide by chartered surveyors is often crucial for clients who are involved in disputes.

RICS surveyors advise and represent clients in disputes

Chartered surveyors can advise clients on technical issues, which are not within the sphere of knowledge and understanding of lawyers and other professionals. Such issues can involve land and property development, construction cost planning and management, business leases, valuation and asset management.

RICS members often represent clients who are involved in dispute resolution processes such as arbitration, mediation and adjudication. They prepare written submissions and advocate their clients’ cases. Chartered surveyors also take on the role of independent dispute resolvers, and  RICS, through its Dispute Resolution Service (DRS) appoints chartered surveyors to act as arbitrators, mediators, adjudicators and independent experts in thousands of disputes each year. 

ADR is a mandatory competency on the APC programme

It is little wonder then that RICS considers skills and knowledge in dispute resolution to be so crucial that it has made it a mandatory competency on the APC programme. In other words, anyone who currently seeks to qualify as a chartered surveyor must demonstrate that they have knowledge and understanding of conflict avoidance and dispute resolution to a level of competence comparable with all other skills normally expected from chartered surveyors.

It is important for experienced chartered surveyors who are involved in dispute resolution to have a high level of proficiency in order to competently advise and support their clients. They must also keep up to date in the relevant law and practice associated with dispute resolution.

Even for surveyors who have no experience in dispute resolution, and perhaps never envisage ever being involved in a dispute, it would be wise to learn about what they must do if they ever find themselves and/or their clients in a dispute. You never know.

A legal obligation

For example, it is a legal obligation on anyone who contemplates taking a civil dispute to court to first explore and, if appropriate, use a form of dispute resolution. If a chartered surveyor or their client ends up in court, it is likely that one of the first questions the judge will ask is: “what attempts have you made to resolve this dispute using dispute resolution and thus avoid the need for litigation”?

There is no excuse for ignorance

The answer a chartered surveyor gives to this question will likely demonstrate the extent to which they are knowledgeable and competent in dispute resolution. It may not go down well with a judge if a surveyor pleads ignorance. The outcome could be that the court might penalise the surveyor’s client in a costs order.

Surveyors who act as expert witnesses will normally be instructed to give evidence to courts or other tribunals on subject matters on which they are highly knowledgeable. However, expert witnesses also need to know how to competently discharge this critical role and understand where their primary duty of care lies, i.e. to the court, not the client who pays their fees.

It is increasingly important for professionals acting as expert witnesses to be trained in discharging the role. In recent judgments, courts have been critical of surveyors and other professionals who failed to demonstrate adequate levels competency in the role. This has motivated the commercial court in Northern Ireland to recently publish a practice direction which, among other things, requires expert witnesses to be properly trained and accredited. It is possible that the courts in England, Wales and Scotland may follow their lead.

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