A brief review of the RICS Mediation rules and procedure
This article will provide a brief overview of the RICS guidance and the RICS mediation rules and procedure.
Through the RICS guidance, RICS promotes mediation as the most effective tool for dispute resolution in all property disputes including commercial or residential property, construction, rent reviews, and leasehold property issues amongst others.
The Standards and Regulation Board of the Royal Institution of Chartered Surveyors (RICS) provides international standards through collaborations with organisations globally to raise transparency within markets.
This article will cover:
A brief overview of the RICS guidance
RICS rules of conduct
When should mediation be considered in property/construction disputes?
Who should attend
A brief overview of the RICS guidance
1. A brief overview of the RICS guidance
The RICS guidance is intended to help surveyors representing clients who are having a dispute before a mediator. It guides surveyors on when they should recommend mediation to their clients, how it works, its consequences, and benefits over litigation.
The RICS guidance represents best industry practice. Although it is not compulsory for members to follow its recommendations, a court, in a professional negligence claim, may draw inference on a surveyor’s failure to follow the RICS guidance. The court will refer to the RICS guidance in deciding whether or not the surveyor acted with reasonable competence.
2. RICS rules of conduct
The RICS rules of conduct set out professional standards of conduct and practice expected of members, regulated firms, trainees, and students. These rules of conduct aim is to uplift and maintain the profession’s reputation in the public’s eye. The RICS rules of conduct are compulsory. They are divided into two sections ie The Rules of Conduct for Members and Rules of Conduct for RICS regulated firms.
The Rules of Conduct for Firms and The Rules of Conduct for Members are both made under Article 18 of the Supplemental Charter 1973 and Bye-Law 5 of RICS Bye-Laws. They cover matters for which firms and members are accountable. They focus on the regulatory goals and are structured around five principles namely; proportionality, accountability, consistency, targeting, and transparency. Failure to comply with these rules will not necessarily rise disciplinary action against a firm or a member. However, should it be necessary to examine the conduct of a firm or the behaviour of a member, they may be required to justify why they did not follow the RICS rules of conduct. 3. When should mediation be considered in property/construction disputes?
Alternative Dispute resolution is widely encouraged over litigation. As such, mediation can be considered by the involved parties at any time before, during, or after proceedings. The most appropriate time to consider mediation however is any time after the details of the claim and response have been shared but before the costs involved have accumulated to a point where they would hinder settlement.
Click here to read our article on ‘What is mediation? How can mediation be used effectively in business?’ to understand the mediation process and why it is widely encouraged over litigation.
Prior to mediation, it is important for the mediator to have a summary of the background of the dispute in question. As such, both parties will need to provide the mediator with key documents such as a position statement which sets out each party’s view of the case. All previous correspondence between the two parties detailing any attempts to settle should also be disclosed to the mediator.
Parties also have the liberty to send the mediator a confidential statement detailing points that are important to them that they would not like the other party to know. Doing this prior to the mediation day saves time.
Parties will also be required to sign a mediation agreement. Mediators usually have a standard form but are often receptive to any amendments to the mediation agreement terms that the parties may agree to. When reviewing the terms of the agreement, parties should pay particular attention to the clauses governing the liability of costs to each party and confidentiality.
5. Who should attend
On the day of mediation, all people with authority to approve of the settlement terms must be present for example board members, clients, insurers, and trustees. Availability should be for the full duration of the mediation process and can either be physically or virtually through email or telephone.
Advisers involved in the matter such as accountants and lawyers should also be available.
The RICS recommendations provide best industry practice and aim to uphold the surveyors’ professional reputation in the public eye. The RICS guidance encourages mediation and therefore sets out the importance of mediation over litigation, the mediation procedure, and offers guidance to surveyors on when they should recommend litigation to their clients in dispute.
The RICS rules supplement this guidance by setting out professional standards of conduct and practice expected of members, regulated firms, trainees, and students. Unlike the RICs guidance, RICS rules of conduct are compulsory. Although failure to follow these rules may not necessarily result into disciplinary action, members will need to justify their failure to follow the rules incase their conduct is under examination.
Why are Serenity Law LLP?
Serenity Law has an experienced team of commercial law experts who are dedicated to helping clients achieve legal solutions. We support our clients to settle their disputes through ADR procedures such as mediation.
Our co-founding partner, Avinder Laroya, is CEDR accredited and a CMC registered mediator for commercial and workplace disputes. She is passionate about resolving international commercial disputes. As a CEDR accredited mediator, Avinder Laroya can work with you to overcome disputes, minimising the need to go through lengthy, costly, and stressful court proceedings.
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