Episode 28 – Part 3 – What is Alternative Dispute Resolution (ADR) in surveying? with Christine O’Rourke, RICS

The following transcript is autogenerated so may contain errors.

Matt Nally  

I think for our very final topic, we’re looking at what is ADR alternative dispute resolution. So Christine, you want to suspend first what alternative dispute resolution is, and and then we can come on? So I suppose why why it’s used? Yeah, absolutely.

Christine O’Rourke 

So alternative dispute resolution covers a wide range of ways in which a complaint or a dispute between two people can be resolved without 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 personal or business doing something or even sometimes just apologising. So, the type of alternative dispute resolution that we that the 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 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 is upheld or not. Like I say there are other forms of ADR but that’s the one that that really all the ADR providers that are ICS firms use will follow

Matt Nally 

is the benefit of the ADR process then versus The court process I know you mentioned, obviously, there’s things that ADR can offer that the court maybe can’t. But I suppose what what, what are those types of things? And is it? What are the other benefits? I suppose I’m not going through the legal process, I guess cost is going to be one of them. But I’m very interested to know what they are. Yeah,

Christine O’Rourke

I mean, ADR provision is set up so that people don’t need to use lawyers. You know, you don’t, anyone who has been through a court process will know that you have to follow the courts rules, that there are usually a number of different steps, that there are requirements about however, however guidance 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, 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 well. The other thing is time. You know, ADR provision is normally a pretty short timescale. Yeah, it’s a matter of months. We all know that, 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, it’s not, 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. I don’t think it’s a huge, you know, is 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 judgement 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 the Supreme Court. Nothing’s kind of binding binding that. But yeah, that’s probably the biggest downside of ADR.

Matt Nally

And do you find that the vast majority of cases that go to ADR get resolved at that stage? I imagine don’t many don’t go into court. As

Christine O’Rourke

far as I know, I mean, it’s it’s the kind of thing where obviously, what we have is we have information about the outcomes of the ADR cases that that are that the ADR providers that our firms use, share with us. And that indicates that actually, in the overwhelming majority of cases, the ADR provider finds in favour of firms. 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 you know, there are a number of complaints where, you know, 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 complainants who were the ADR providers find in favour 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 and firms that 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 way, that way, disputes can be resolved. That works quite easily.

Matt Nally

That ties in very nicely to my next question, because I was going to ask about one thing I’ve heard it and you’ve mentioned it is it’s unfair. I suppose particularly but a lot of you ADR cases end up in in firms favour. Is it unfair then that the firm has to pay the ADR Coffee. And I suppose there’s that there are reasons behind why it has to be set up that way. Otherwise, it becomes very difficult for I assume, for difficult for consumers to be able to make a complaint if they have to then cover the cost subject to it, you know, going their way or not later. Is that the main reason why it’s not set up that way? Or are there other factors behind it? Yeah,

Christine O’Rourke

I mean, so it is. So for consumer ADR, you know, if if there are there are services that are set up for businesses to use ADR against another business, but 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 if you are required by a trade body to provide ADR to consumers, that there are a set of requirements for that ADR and one of them is that it’s it’s free or low cost to the consumer. All 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, you know, they are bringing a complaint in good faith, 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. And the firm is often in the position to kind of think about the funding of ADR in a different way to a consumer. It’s, I understand the criticism, but it for the majority of our firms. They weren’t getting any cases referred to ADR in a year. Those that do I’m I can think of, 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, 1000s of pounds per case. And different ADR providers have different funding models. So the default ADR provision that we use, which is three Cedar, we have a contract with them that says that they will provide they will be an ADR provider for any ICS 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, when a complaint is made.

Matt Nally

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 or individual sole 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 there there’s I think there 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,

Christine O’Rourke

and the other thing, of course, is that people can come and complain to our ICs. Now, 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. And technically, they’re free for the firm in that there is no charge for for our ICS looking at a complaint. But of course there is a cost for our ICS 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 member’s subscriptions. And obviously the more complaints we’re having to deal with, even if what we’re doing is saying to people, no, this isn’t something that that is misconduct, the more charge there is on members as a whole. So, you know, there is a fairness argument that says that actually making sure that those are properly channelled 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.

Matt Nally

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 follow up from this. But what other options are there? I suppose beyond ADR and courts, are there other processes involved, that can help with dealing with complaints or claims and stuff like that? Or are they the two key ways of handling it are

Christine O’Rourke

the two key ways of handling it so 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, 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, as part of our ADR, it’s just not the, you know, the most common kind of consumer dispute resolution process. But it’s something that particularly in 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 is the other one that that is sometimes useful. But the best way to, the best way to avoid claims really is to, you know, make sure that the people doing your work are competent, and have the time and the resources to do the work properly, you know, not put people under under pressure to try and do work quickly or, you know, do work that they don’t feel confident to do. And to therefore, be charging a fee that allows for that. And I recognise that that’s difficult in a competitive market. But, you know, explaining to people what it is that they’re getting for their money is, is helpful. And to 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 as ADR or claims. A

Matt Nally

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, don’t be taking too much on. And then and then understanding how to market your USP is and if you can really understand what your USP is, and it’s not where RSCs we’re local, we’re whatever, because it’s the same things other people might be saying it’s really drilling down into, if you can really clearly say what the value is that you’re hoping for somebody else, you can then charge the higher fee, and then you’re not able to do the volumes, that thing potentially could lead into claims of accidents and stuff in terms of doing something wrong. So yeah, very, very interesting. Thank you very much for coming on today.

Christine O’Rourke

Thanks for inviting me.

Matt Nally

If if anyone wants to learn more professional conduct, or these types of things, is there a good person to contact or place to look on the website?

Christine O’Rourke

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 and the banner at the top of the website. If you look for the professional standards, it’s there. There’s also a central email address standards at our ics.org for members who have questions about our ICS standards, so you can send us a message there. We’ll we’ll do our best to answer it. Lovely.

Matt Nally

Well, yeah, thanks again for coming on. And I look forward to catching up again soon.

Christine O’Rourke

Thanks.