Conflict Avoidance Flashcards
Please describe the Conflict Avoidance Process (CAP)?
The RICS Conflict Avoidance Process (CAP) is a contractual mechanism which helps parties
avoid prolonged and damaging disputes.
The purpose of CAP is to enable contracting parties
to identify and dispose of emerging disputes early to avoid escalation
to formal, confrontational procedures such as adjudication, arbitration or litigation.
What does CAP involve?
A panel of three impartial professionals.
They work collaboratively and within an agreed timetable produce a CAP report which contain recommendations for resolution.
What can you do to try and avoid conflict?
Clear, concise and careful drafting of the contract or lease and associated documentation.
Understanding what could go wrong or how misinterpretation between parties might arise.
Managing all parties’ expectations by understanding their objectives and clearly communicating these.
Negotiating contractual obligation carefully and transparently will help to avoid later conflict or at least enable their efficient resolution.
Keeping good records with a sufficient level of detail can often help to resolve conflicts before they escalate
What are the THREE main processes available in resolving disputes?
Negotiation: problem-solving efforts of the parties themselves.
Mediation: 3rd party intervention which does not bind the parties to a decision but assists them to resolve difficulties.
Adjudicative processes: an outcome determined by a third party, such as litigation or arbitration
What is the hierachy of avoidance management?
Conflict Avoidance
Negotiation / Mediation
Adjudication
What is arbitration?
- Arbitrator appointed in a quasi-judicial role in accordance with the Arbitration Act 1996.
- Parties are bound by the decision.
- Will have specialist knowledge in the subject area.
- Cannot be sued for negligence but their decision can be over-ruled by the Court of appeal on a point of law only.
- Offers a fast, cost effective and confidential solution to a dispute.
- Surveyors can act as an arbitrator having passed the Chartered
Institute of Arbitrators exams.
What is an independent expert determination
- Independent expert is appointed by the two parties (or by President of the RICS undertaken by the RICS Dispute Resolution Service).
- Expert has knowledge on the subject matter of the dispute.
- Both parties are bound by the decision.
- Independent expert is appointed to investigate the dispute and receive evidence from both parties.
- They can use their own opinion or evidence to decide upon the award
- Process offers speed and specialist knowledge in the solution
- RICS Guidance Note on Independent Expert Determination, 2016”
What is Conflict Management
Conflict management is when the instruction is accepted, and steps are agreed and put in place to manage the conflict.
Such as an information/ethical barrier, with the written agreement of all parties.
What are the three levels of disciplinary action?
1) Action by Head of Regulation
2) Regulatory Tribunal
3) Appeal Panel
Once an investigation is complete, if found guilty, what four actions could the Head of Regulation initiate as disciplinary action?
Serve a Fixed Penalty Notice.
Make a Regulatory Compliance Order.
Refer the matter to a single member of the Regulatory
Tribunal for consideration.
Refer the matter directly to a Disciplinary Panel.
