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Episode 28 – Part 3 – What is Alternative Dispute Resolution (ADR) in surveying? with Christine O’Rourke, RICS
46 Plays1 year ago
In PART 3 of this week's episode, we speak with Christine O'Rourke from RICS about what Alternative Dispute Resolution (ADR) is in surveying.
Across the three parts of this episode, we are discussing how professional conduct, complaints handling and dispute resolution are tied together and how they are positive tools for helping you provide a great service.
Christine develops professional conduct, ethical and competence standards. This uses her experience of working with different professions, regulatory casework, analysing information and making and communicating difficult decisions to support members of RICS and regulated firms in delivering high standards of service and responsible business.
In Part 3 of this episode, we discuss:
😠 What is ADR?
⚖️ Does it include legal representation?
⚠️ What happens at the outcome?
🏆 How many ADR cases are found in favour of the firm?
💰 Why ADR is free for the customer
📣 Ways to avoid complaints in the first place
Recommended
Transcript
Introduction to ADR
00:00:00
Speaker
For our very final topic, we're looking at what is ADR or alternative dispute resolution. So, yeah, Christine, do you want to explain first what alternative dispute resolution is and then we can come on to, I suppose, why it's used. Yeah, absolutely.
What is ADR?
00:00:15
Speaker
So alternative dispute resolution covers a wide range of ways in which a complaint or a dispute between two people can be resolved without
00:00:28
Speaker
going to court effectively. The absence of going to court is what makes it alternative dispute resolution. And these processes are normally set up to be quicker and cheaper and sometimes to be able to provide remedies that courts can't. So they're usually about providing some kind of redress. So sometimes that's financial, but sometimes it isn't. Sometimes it's a person or a business doing something.
00:00:57
Speaker
or even sometimes just apologizing.
ADR in Surveying
00:01:02
Speaker
So the type of alternative dispute resolution that all of the actual alternative dispute resolution providers that work in the surveying space use is something called adjudication, which means that you have an individual who is usually a lawyer, can be a surveyor,
00:01:25
Speaker
or can have some other expertise in dispute resolution, looks at the evidence that both parties provide, usually in writing, and makes a decision about whether the complaint is upheld or not. Like I say, there are other forms of ADR, but that's the one that really all the ADR providers that RICS firms use will follow. Actually, is there a benefit of
00:01:51
Speaker
the ADR process then versus the court process.
Advantages of ADR for Non-Lawyers
00:01:54
Speaker
I know you mentioned, obviously, there's things that the ADR can offer that the courts maybe can't, but I suppose what are those types of things and what are the other benefits, I suppose, of not going through the legal process? I guess cost is going to be one of them, but yeah, it'd be interesting to know what they are. Yeah. I mean, ADR provision is set up so that people don't need to use lawyers.
00:02:18
Speaker
anyone who's been through a court process will know that you have to follow the court's rules, that there are usually a number of different steps, that there are requirements about how evidence is produced and what you're allowed to produce and all of those sorts of things that it's very hard to navigate without a lawyer. ADR is really set up to be used by people who don't have legal representation. So it's pretty straightforward. It usually involves
00:02:48
Speaker
you know, sending in the evidence that you have and something which details either your complaint or your response to it, and then someone looking at that and asking you if they need anything else. You know, if you've forgotten to send something to a court, a judge isn't going to write to you and let you know that there's something else that they need, an ADR provider probably will.
Are ADR Outcomes Binding?
00:03:10
Speaker
The other thing is time. You know, ADR provision,
00:03:17
Speaker
is normally a pretty short time scale. It's a matter of months. We all know that cases in the courts can be a matter of years. And it's set up really to be less adversarial. The idea of it is to try to provide a resolution, an outcome, which the parties accept. The downside of it, I suppose, is that unlike court,
00:03:50
Speaker
It's only binding on both parties if the complainant in consumer ADR agrees to the outcome. So what can happen is that a consumer client can go to ADR, can go through the process, and then at the end of it can decide that actually they don't accept the ADR outcome, and they can then go on to court. Now, how often that happens?
00:04:16
Speaker
I don't think it's a huge, you know, it's a huge number of people who go on. But that is a possibility that comes out of ADR. But whereas a court, of course, you get a judgment at the end, and even if you don't like it, you're bound by it. I mean, of course, you can still appeal, you know, until you get up to the Supreme Court. Nothing's kind of binding, binding. But yeah, that's probably the biggest downside of ADR.
00:04:41
Speaker
And do you find that the vast majority of cases that go to ADR get resolved at that stage?
ADR Case Outcomes
00:04:48
Speaker
I imagine many don't go on to court. As far as I know, I mean, it's the kind of thing where obviously what we have is we have information about the outcomes of the ADR cases that the ADR providers that our firms use share with us. And that indicates that actually in the overwhelming majority of cases,
00:05:09
Speaker
the ADR provider finds in favor of the firm, so they find that the firm have done the right thing, that they've either not done anything wrong in the first place, or that they've made their best efforts to resolve the complaint when it's made to them. But obviously there are a number of complaints that result in some kind of finding against the firm. What we don't know, and I don't have any data on, is how many
00:05:38
Speaker
complainants who, where the ADR providers find in favor of the firm, go on to the court. But I would be surprised if it's lots. Because obviously, once you start to get into court proceedings, you then start to get into having to pay court fees and, you know, just a lot more time and energy from the complainant to actually bring the case. And that's one of the things, you know, I understand the criticism that you get from members of the firms that
00:06:08
Speaker
ADR is too easy for complainants that, you know, they can just try it on, but it's intended to be that way. The idea is that for both sides, it's not a kind of huge commitment of time and effort so that where disputes can be resolved, that works quite easily. Yeah, that ties in very nicely to my next question, because I was going to ask about, you know, one thing I've heard, and you've just mentioned it, is it's unfair
00:06:38
Speaker
I suppose particularly that a lot of ADR cases end up in the firm's favor.
00:06:49
Speaker
Is it unfair then that the firm has to pay the ADR fee? And I suppose there are reasons behind why it has to be set up that way. Otherwise, it becomes very difficult for consumers to be able to make a complaint if they have to then cover the cost subject to it going their way or not later. Is that the main reason why it's set up that way or are there other factors behind it? Yeah.
Consumer ADR Costs
00:07:13
Speaker
So for consumer ADR,
00:07:19
Speaker
If there are services that are set up for businesses to use ADR against another business, but we'll keep this to consumer ADR because that's what we require firms to have free of charge for the consumer. And that's based on UK legislation. So the law in the UK is that if you are required by a trade body to provide
00:07:49
Speaker
ADR to consumers that there are a set of requirements for that ADR. And one of them is that it's free or low cost to the consumer. All the professions that I'm aware of have ADR provision, which is free to the consumer. And that is really because for most consumers,
00:08:16
Speaker
you know, they are bringing a complaint in good faith, and we don't want to put barriers in their way of being able to get that complaint resolved. It's also a benefit for the firm, to be honest. You're, you know, you're providing an independent view of a dispute, which does often resolve it at much lower cost and energy than going to court, like we just talked about.
00:08:46
Speaker
And the firm is often in the position to kind of think about the funding of ADR in a different way to a consumer. I understand the criticism, but for the majority of our firms, they won't get any cases referred to ADR in a year. Those that do, I can think of
00:09:15
Speaker
You know, the data suggests that for the overwhelming majority, particularly of small firms, they might get one or maybe two cases that go to ADR in a year. The ADR fee is in the kind of low hundreds of pounds. We're not talking about, you know, thousands of pounds per case. And different ADR providers have different funding models. So the default ADR provision that we use, which is through CDER,
00:09:45
Speaker
We have a contract with them that says that they will provide, they will be an ADR provider for any RICS regulated firm and they will only charge anything if a complaint is made to them. So you don't have to pay them a registration fee, you don't have to pay them any kind of annual fee, you only pay when a complaint is made.
00:10:10
Speaker
interesting okay I think one other thing that popped into my head there actually while you were saying that is in terms of benefits of it being free to the consumer is and it ties back to the professional conduct part which is if if it's too difficult for customers to make genuine complaints or too costly and they can't do that then any firm
00:10:29
Speaker
or individual sofa practitioner who is acting unethically and not adhering to the standards can continue to get away with it more easily because it's too difficult for someone to actually make a valid complaint. So it's, yeah, there's, I think there's probably a number of factors behind why it's desirable to make it easy for customers if they need to, to be able to go through that process. Yeah. And the other thing of course, is that people can come and complain to our ICS. Now,
00:10:57
Speaker
Our ICS complaints do something different to ADR provision. So we are looking at whether someone is guilty of professional misconduct and whether we need to take disciplinary action in the public interest. But if we were spending a lot of our time handling, you know, these requests for redress from people, you know, they're free for the consumer.
00:11:22
Speaker
and technically they're free for the firm in that there is no charge for RICS looking at a complaint. But of course there is a cost for RICS members as a whole because we have to fund regulation and that's funded, I mean, it's funded in lots of different ways, but part of the funding, a relatively small part of the funding comes out of members subscriptions. And obviously the more complaints we're having to deal with
00:11:51
Speaker
even if what we're doing is saying to people, no, this isn't something that is misconduct, the more charge there is on members as a whole. So there is a fairness argument that says that actually making sure that those are properly channeled through an ADR provider who can look at them quickly with a relatively small fee to the firm is fairer than all of those complaints coming into our ICS and having to be funded by the membership as a whole.
Is Mediation Common in Consumer Cases?
00:12:20
Speaker
Yeah, that's a very fair point because you don't want to be then on the flip side, be feeling that you're contributing to everybody else's misdoings or something like that. I suppose my final question around ADR, and I often say this, so hopefully there aren't too many followers from this, but what other options are there? I suppose beyond ADR and court, so there are other processes involved that can help with
00:12:47
Speaker
dealing with complaints or claims and stuff like that, or are they the two key ways of handling it? They're the two key ways of handling it. So ADR includes mediation, which is two parties agreeing that they will have a meeting and they will try to agree between them a solution. So it's not an independent person kind of making a decision.
00:13:15
Speaker
it is the two parties seeing if they can reach an agreement. That can be a really useful process if both parties want to do it. It's not something that we provide as part of our ADR. It's just not the most common kind of consumer dispute resolution process. But it's something that particularly in
00:13:43
Speaker
you know, particularly if you're looking at a very big claim, you might find that your lawyers suggest using mediation before kind of court processes as part of a kind of attempts to resolve the dispute before you incur a lot of costs and things like that. So mediation is the other one that is sometimes useful. But the best way to avoid claims really is to, you know,
00:14:11
Speaker
make sure that the people doing your work are competent and have the time and the resources to do the work properly, not put people under pressure to try and do work quickly or do work that they don't feel confident to do. And to therefore be charging a fee that allows for that. And I recognize that that's difficult in a competitive market, but explaining to people what it is that they're getting for their money is helpful.
Preventing Disputes
00:14:39
Speaker
And to
00:14:40
Speaker
understand what your client wants in the first place, be clear and transparent with them about what you can deliver and what you can't, and then make sure that you are responding to your client when they ask you questions, when you need to provide them with information, or if they express concern, so that hopefully things don't get as far as ADR or claims.
00:15:02
Speaker
very nice wrap up at the end there I think in terms of the preventing in the first place and I completely agree and it ties in with things we've said before which is don't be taking too much on and then understanding how to market your USPs and if you can really understand what your USP is and it's not we're RCS we're local we're whatever because it's the same things other people might be saying it's really drilling down into
00:15:27
Speaker
If you can really clearly say what the value is that you offer over somebody else, you can then charge the higher fee and then you're not able to do the volumes that then potentially could lead into claims or accidents and stuff in terms of doing something wrong. So yeah, very, very interesting episode. Thank you very much for coming on today. Oh, thanks for inviting me Matt.
Resources and Standards
00:15:48
Speaker
If anyone wants to learn more around professional conduct or these types of things, is there a good person to conduct or place to look on the website?
00:15:56
Speaker
Yeah, absolutely. So we have a whole section on the website on professional standards where you can find both conduct and competence standards and also technical standards. So in the banner at the top of the website, if you look for professional standards, it's there. There's also a central email address, standards at rics.org, for members who have questions about RICS standards. So you can send us a message there and we'll do our best to answer it.
00:16:26
Speaker
Lovely, thanks again for coming on and I look forward to catching up again soon. Thanks Matt.