Conflict avoidance Flashcards
What is the key legislation to consider for this competency?
‘RICS Regulation - Alternative Dispute Rsolution (ADR) Mechanisms
RICS PS - Conflicts of Interest 2017
RICS GN - Conflict Avoidance and dispute resolution in construction 2012
RICS GN - Conflicts of interest for members acting as dispute resolvers 2020
RICS GN - Complaints handling
What are some general dispute avoidance techniques?
‘Good Management: Proactively managing a project. Raising early any issues of concern
Clear Contract Documentation: Many disputes arise from ambiguities in contract documentation or argument as to whether there is a contract at all
Partnering and Alliancing: Building co-operation between the project participants. Promote team working, problem solving and an emphasis on project delivery.
Clear, Open and Honest Communication
Robust Client Brief: A good understanding of the client’s objectives approach to risk
Good Constructor Management: Good understanding of the project, contract and programme. Problems and delay need to be dealt with at the time in a positive and objective manner
Good Design Team Management: The provision of information within the design team and from the design team to the contractor. Good forward planning
Good Payment Practice: Valuations should be carried out and payments made promptly
Record Keeping: Disputes can be resolved by retrospectively considering records that have been kept during the course of a project. Keeping a proper record of the labour, plant and materials. Obtaining a daily record of the site’s activities as well as regularly obtaining progress reports
Regular Reporting and Proactivity: The regular monitoring of cost, progress and quality. This may take the form of minutes of meetings, progress reports, drop lines on programmes, and photos
What is your company’s policy for avoiding disputes?
’- Conflict checks should be carried out when contracting with new and existing clients.
- Use the conflict check material on the intranet.
- Clarify whether the client is a Global Key Client or UK Key Client, via the intranet.
- Check if another Arcadis entities have any connections with the client.
- If a potential conflict is identified you should contact the Business Director and Legal team.
- Informed Consent from the client may be required.
- Information Barriers may also be required internally.
Can you outline some alternative dispute resolution methods?
‘Negotiation - The parties resolve the issues/ conflicts themselves before they escalate. Power to settle remains with the parties
Mediation - A third party is contracted to facilitate negotiations between parties. Result is not binding
Adjudication - A third party provides a decision for a dispute between parties. Result is binding, but can be appealed/ overturned
Arbitration - A third party provides a decision for a dispute between parties. Similar to litigation. Takes longer than adjudication but carries more weight
Ligation - A Court provides a binding decision for a dispute between parties
What dispute resolution services are available?
’- SAS (Surveyor’s Arbitration Scheme). Used by Arcadis
- RICS dispute resolution service
- Property Ombudsman
Can you explain the role of an expert witness?
’- An expert who uses their knowledge and experience in a specific area to help assist courts to understand issues in legal cases so that they reach a sound and just decision
- Typically required in situations where an evaluation of the issues requires technical or scientific knowledge that only an expert in that field is likely to have
- Opinions provided by expert witnesses are described as ‘expert evidence’. Often include; factual evidence, explanation of any technical terms, and opinions based on the facts of the case
What are the three pillars of dispute resolution?
’- Negotiation
- Mediation
- Adjudication/ Arbitration/ Litigation
What court holds litigation cases?
‘TCC court = Technology and Construction Court
Differences between litigation and arbitration?
’- Litigation: Court (public). Multiple cases can be brought at once. People can be called up involuntarily
- Arbitration: Private process similar to litigation with less powers
What act covers arbitration?
What act covers adjudication?
’- Arbitration Act 1996
- Housing Grants, Construction and Regeneration Act 1996 (creates the right to adjudication)
What is a conflict of interest?
‘Anything that impedes, or might be perceived to impede, your ability to act impartially or in the best interest of your client.
What are the three types of conflict?
‘1. Party Conflict
2. Own Interest Conflict
3. Confidential Information Conflict
What is a party conflict?
’- When acting in the interests of a client conflicts with a duty owed to another client in relation to the same professional assignment
- Or, if a company is providing more than one service to the same client and the roles overlap or come into contact with one another
- When Arcadis provides more than one service to the same client
What is a own interest conflict?
’- When acting in the interests of a client in a professional assignment conflicts with the interests of yours or your company’s
What is a confidential information conflict?
’- When you are required to provide information to one client, but it conflicts with a duty to another client to keep that same information confidential.
