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RICS APC - EVIE > Conflict Avoidance > Flashcards

Conflict Avoidance Flashcards

1
Q

Why do conflicts arise ?

A

Because of failure to comply with a contractural obligation that may occur because of differing interpretations of the contract itself.

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2
Q

What is a dispute ?

A

Where two or more parties disagree on something.

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3
Q

What is dispute resolution ?

A

Actions to resolve contractural disagreements between two parties.

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4
Q

How are disputes avoided ?

A
  1. Effective contractural drafting
  2. Sensible resource allocation
  3. Appropriate financing.
  4. Pro-active project management.”
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5
Q

Name conflict avoidance processes ?

A

“1. Good management
2. Clear contract documentation
3. Good Payment Practice
4. Record Keeping
5. Regular reporting and proactivity.”

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6
Q

What is your for conflict avoidance style?

A

“I generally confront the issue as I feel that this is the quickest and least adversarial way to avoid conflict, by dealing with the facts.

I would be forcing when I believe the position is clear cut in order to protect the client.”

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7
Q

What are Alternative Dispute Resolutions?

A

“ADR predominently meana alternative dispute resolution and refers to the process which are alternatives to the traditional binding dispute resolution procedures of litigation and arbitration. It is alternative in the sense that it provides a faster and more economic dispute resolution procedure.
“

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8
Q

What are the advantages of ADRs?

A

“1. Speed
2. Informality - no courts involved.
3. Cost - Inexpensive
4.Good Quality decision making - decision usually made by a RICS Surveyor.
5. Confidentiality
“

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9
Q

What are the three pillars of negotiation ?

A

“(NMA)
Negotiation - Problem solving between the parties.
Mediation/conciliation - Thid party intervention which is not binding.
Arbitration/adjudication - Third party intervention which is binding.”

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10
Q

What is statutory adjudication ?

A

It is the right to adjudication that is granted to all parties of a construction contract under the Housing Grants Construction and Regeneration Act 1996.

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11
Q

What are the types of dispute resolution ?

A

“Negotiation,
Mediation and Conciliation
Expert determination
Arbitration
Adjudication
Litigation”

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12
Q

What do you understand by statutory ?

A

Statutory Law (Statue Law) is set down by legilate.

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13
Q

Why is ADR required by contracts ?

A

According to the Rules of Conduct 2021 to safeguard the public and RICS members.

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14
Q

How do you avoid a conflict?

A

The best way is to keep communication constant so that all parties understand what is going on when there is a dispute, it can be effectively addressed in a fair way.

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15
Q

What is a conflict of interest ?

A

Whena duty to act on behalf of one party is compramised or potentially compramised by the duty to act on behalf of another party which has competing interests.

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16
Q

How would you carry out a conflict of interest check?

A

“At my firm we use a conflict of interest data base system which allows us to see active instruction or instruction a surveyors impartiality or duty of care may be compramised.
A if there is a conflict of interest then this should either be avoided or managed.”

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17
Q

What is Negotiation?

A

Dialogue to reach an agreement that satisfies both parties. The parties work between themselves to resolve the issue and to reach an agreement.

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18
Q

What are the advantages of negotiation?

A

“Informal
Non-adversal - can help relationships
Private and usually quick
Usually inexpensive
Flexible - parties retain control”

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19
Q

What are the disadvantages of negotiation?

A

“The compramise might not fully resolve the issue.
Some can disclose too much information.
Generally non-binding
Costs may not be recoverable. “

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20
Q

How to you prepare for a negotiation?

A

“I familiarise myself with the negotiation and with what is being negotiated.
This will allow me to better understand my own argument, and pre-empt the oppositions argumenr and repsonses.”

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21
Q

What is arbitration ?

A

“A Private contractural form of dispute resolution where a thrid party arbitrator or panel who is selected by the parties, forms a decision based on material facts, documents and principles of law. The decision is legally binding and has limited rights to appeal.
Legal costs are usually awarded to the successful party”

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22
Q

What are the advantages of Arbitration?

A

“1) Governed by the Arbitration Act 1996
Private
2) Arbitrator is usually experienced in the field.
3) Consensual in that parties can decide timings etc.
4) Outcome is binding
“

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23
Q

What are the disadvantages of Arbitration?

A

“Expensive
Can only be appealed on point of law/jurisdiction.”

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24
Q

Who can be an Arbitrator?

A

An expert in their own right, who acts fairly and impartially to reach a decision.

25
Q

What is the Arbitration process?

A

“The appointed Arbitration body must be notified, and they will appoint an Arbitrator.
The main hearing will be held, whereby each side will present their version of the conflict along with their evidence.
The arbitrator will then base their decision on what they believe to be fair and just.
It is difficult to appeal an Arbitration - can only be appealed if it was believed the Arbitor was corrupt.”

26
Q

What types of Arbitration are there

A

“1. Ad hoc
2. Short hearing
3. Documents only “

27
Q

What is adjudication ?

A

“Contractural ADR. Provided by a 3rd party adjudicator selected by the parties in dispute. The adjudicator is either named in the contract or the parties agree to a nominating body. Adjudication is subject to a strict timeline and the decision is based purely on documentatary submission rather than investigating facts himself.
The decision is binding unless revised by an arbitration or litigation.
Can take 28 days.
“

28
Q

What are the advantages of adjudication?

A

“Private
Statutory right to adjudication for parties under a constitution contract
Decision within 28 days
Legally binding”

29
Q

What are the disadvantages ?

A

Adversarial

30
Q

Can you reject the adjudicators decision?

A

Yes that party can then proceed with litigation or arbitration.

31
Q

What is the Adjudication process?

A

“Notification of adjudication from one party to another
From receipt of notification, parties have up to 7 days to appoint an adjudicator.
Adjudicator will review parties cases and make their decision within 28 days.
Adjudicator has no power to award costs.”

32
Q

Who appoints an adjudicator ?

A

It is either specifically named in the contract particulars or nominated by the nominating body listed in the contract particulars.

33
Q

Is Adjudication binding?

A

“Adjudication decisions are binding unless and until they are revised by subsequent arbitration or litigation after practical completion, or by agreement between the parties (hence the term ‘pay now argue later’).
There is no right of appeal and limited right to resist enforcement.
Generally, adjudicators do not have the power to award costs (other than their own fees and expenses).
Adjudication must adhere to strict timescales and typically takes up to 28 days.”

34
Q

Under JCT how long does an adjudicator have to make his award?

A

28 days from issue of the referral notice, but this can be extended to 42 if both parties agree.

35
Q

What are the two types of mediation ?

A

“Evaluative
* Facilitive”

36
Q

What are the advantages of litigation ?

A

“Binding but can appeal
Can deal with several claims at once.”

36
Q

What is litigation?

A

The process of taking legal action

37
Q

What are the disadvantages of litigation?

A

“Adversarial
Publically exposed
Expensive
No influence over choice of judge or hearing details.”

38
Q

Why would you go for litigation?

A

Litigation allows you to bring multiple disputes to the table to be heard and can bring unwilling parties in.

39
Q

Why Might you choose Litigation over Arbitration?

A

“Multiple but separate disputes can be heard under the same case.
On a statutory basis, can bring unwilling parties into litigation”

39
Q

What is the difference between arbitration and adjudication?

A

“Arbitration is a procedure in which both sides agree to let an impartial third party, the arbitrator, decide the case
The arbitrator may be a lawyer, or may be an expert in the field of the dispute, or in some cases, an arbitration panel
The arbitrators decision, known as an award, is legally binding and can be enforced through the courts
Normally, there is no appeal, however there are exceptions in which appeals may be accepted
In adjudication, the decision is the responsibility of a third party adjudicator selected by the parties to the dispute
Adjudication decisions are binding unless and until they are revised by subsequent arbitration or litigation after practical completion, or by agreement between the parties (hence the term ‘pay now argue later’)
There is no right of appeal and limited right to resist enforcement
Generally, adjudicators do not have the power to award costs (other than their own fees and expenses)
Adjudication must adhere to strict timescales and typically takes up to 28 days”

40
Q

How do you appoint a Adjudicator?

A

Though the nominating body - RICS as per the contract

41
Q

What are the timeframes for adjudication?

A

28 days to complete this can be extended to 42 days with agreement from both parties.

42
Q

What is the RICS dispute resolution service ?

A

The worlds oldest and largest provider of ADR services for Land, Property and Construction Industries.

42
Q

What method of ADR is specified in the contracts you use and what are the benefits of this method?

A

Initially negotiations with the nominated parties in the contract, this can be escalated to arbitration.

43
Q

Why might you want to keep disputes out of the courts ?

A

For costs and reputational damage

44
Q

What is the difference between Mediation and Conciliation?

A

“Mediation is a voluntary procedure, which involves the appointment of a third party mediator, who will help to facilitate negotiations between parties. Them aim of mediation is to help the parties reach an amicable agreement.
Conciliation is also a voluntary procedure, which involves the appointment of a third party Conciliator. The role of the conciliator is to also facilitate negations, however the Conciliator will create a settlement proposal.”

45
Q

What is included within the RICS Conflict Avoidance and Dispute Resolution Guidance Note?

A

1) Conflict Avoidance Process
2) Three pillars of dispute resolution
3) ADR
4) Dispute resolution procedures
5) Dispute escalation clauses

46
Q

What is Expert determination ?

A

The parties agree by a contract that a third party will make a binding decsion on them. In most cases, the decision is final and un-appealable.

47
Q

What criteria do RICS require of an ADR / Ombudsman?

A

“The ADR mechanism must be well established
The ADR mechanism must be independent of the firm or valuer
The ADR mechanism must use a transparent, accountable and consistent decision-making process”

48
Q

What is an expert witness?

A

Someone with specialist skills, knowledge, or experience who testifies in court about what s/he believes has happened in a certain case based on those specialist skills, knowledge or experience.

49
Q

Who do they have a duty to ? (Expert Witness)

A

The courts

50
Q

What is the responsibility of an expert witness ?

A

To provide independent, impartial, and unbiased evidence to the court or tribunal.

51
Q

Can you name some of the RICS approved ADR / Ombudsman bodies? Where would you find this information?

A

“Centre for Effective Dispute Resolution
The Property Ombudsman
The Property Redress Scheme
Finacial Ombudsman Service “

52
Q

What is the conflict avoidance pledge CAP?

A

The conflict avoidance pledge (CAP) has been developed by a coalition of professional and industry bodies, and demonstrates commitment to conflict avoidance and the use of amicable resolution procedures to deal with emerging disputes at an early stage.

53
Q

What statute does Arbitration sit under?

A

The Arbitration Act 1996

54
Q

Who set up the property ombudsman?

A

The scheme was underpinned by statue in 2007 (estate agents) and 2014 (letting and managing agents) and approved by the UK government to help consumers settle their disputes with property businesses such as estate agents, letting agents and property management agents.

55
Q

What does without prejudice mean?

A

That it cannot be used as evidence in court proceeding or criminal proceedings.

56
Q

What is the meaning of disclosure?

A

Relating to a mechanism allowing a party in arbitration to see a file of the other party.

RICS APC - EVIE (17 decks)

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