Conflict Avoidance Flashcards
What is a conflict?
A conflict is effectively a clash of interests.
What is your firms policy on valuation adjustment?
Wouldn’t change it
What is conflict avoidance?
Drafting contract of an concise and proactive conflict avoidance risk analysis: understands what could go wrong with conflict and misrepresentation between parties
- Manage all parties expectations
- Negotiate contractual obligations carefully and transparently
- Keeping good records to help resolve conflict before they escalate
What is conflict management?
The use of processes, tools and skills to find ways to manage disagreements and disputes
How can good record keeping avoid conflict?
By keeping copies of emails, minutes of meetings and telephone calls can reduce conflict as it is then clearly documented what is required and is being done.
It also ensures that action points are met
When do disputes arise in your role?
Disputes can arise if you agree a fee and then your client asks you to do extra work on top of this which is time consuming and complex.
What can you do if negotiations break down?
If negotiations breakdown you have the ability to choose from alternative dispute resolution processes. Such as:
* Mediation
* Arbitration
* Independent expert determination
What is a conflict of interest?
A situation where a surveyor’s ability to complete an instruction in an impartial manner is jeopardised
Give examples of ways that conflict can be avoided.
Conflicts can be avoided through:
* Conflict avoidance
* Conflict management
Why is good management important?
Good management is important because it ensures that objectives are met through a transparent process.
It also ensures that a high standard of service is being provided and is part of the rules of conduct for firms and members.
What are the benefits of clear contract documentation?
- Benefits of clear contract documentation provides proof of what was agreed between you and the other party.
- It helps to prevent future misunderstandings or disputes by making the agreement clear from the beginning
What is partnering or alliancing?
Partnering and alliancing are terms to describe a collaborative approach
Why is good project or instruction management important?
Good instruction management is important because it ensures that what is being delivered is correct.
How can good client management reduce conflict?
Good client management can reduce conflicts because you are able to build a good relationship with them based on openness, trust and respect.
What are the three pillars of dispute resolution?
- Negotiation: two parties agree mutually on a contract
- Mediation or conciliation this is used when issues are unable to be resolved by negotiation
- Adjudicative process: last resort (dispute from the court)
What is Alternative Dispute Resolution (ADR)?
Alternative dispute resolution (ADR) differs slightly in that it is a procedure to avoid litigation.
Why might you prefer to pursue ADR rather than litigation through the Courts?
- Typically, cheaper and quicker than litigation
- More flexible process than Court proceedings governed by the Civil Procedure Rules
- Can be a confidential process
Tell me about a conflict of interest check you have carried out.
- I had to undertake a conflict for a new instruction, Lisson Grove
- I checked both the client and the property on my firm’s internal system.
- This highlights any potential conflicts on the client, property and surrounding properties.
- There were no potential conflicts and as a result the sheet was signed and saved in the job file.
Can you tell me about any RICS guidance relating to conflicts of interest?
RICS Professional Statement: Conflicts of Interest, 2017
What is the practice of dual agency/double dipping?
Dual agency and double dipping was banned in 2018.
It is where a surveyor has a contractual relationship with both the seller and the buyer.
What is the difference between an arbitrator and an independent expert?
Arbitrator:
- Evidence – only what is provided to them by both parties
- Appeal – limited to right to appeal
- Negligence – not liable for negligence and cannot be sued
- Law – Arbitration Act 1996
- Costs – power to award costs
Independent Expert:
- Evidence – they are able to include their own evidence
- Appeal – there is no right to appeal
- Negligence – can be liable for damages
- Law – no legislation
- Costs – Power over their own costs
- Guidance note – Independent Expert Determination, 2016
What is mediation?
Mediation – a neutral mediator who facilitates discussions between the two parties
- Conducted ‘without prejudice’ (cannot be relied up)
What is Adjudication?
Adjudication – typically for construction payment disputes. To be decided within 28 days
- Dispute acting in accordance with statute (Arbitration Act 1996)
- Legally binding
- Must have specialist knowledge in this area
- Appointed by RICS Dispute Resolution Service
- Has power to award costs
- Fast, cost effective, confidential
What is a Dispute Review or Recommendation Board (DRB)?
An independent panel of impartial professionals providing guidance to resolve project issues and mitigate their impact during an active construction project.
How does DRB process work?
An agreement between the owner and the party constructing the project creates the board and describes its role and responsibilities. The board cannot make decision unless it is clearly stated in the contract.
What is a Dispute Adjudication Board (DAB)?
Dispute Adjudication Board – is an independent panel of typically 3 experienced construction professionals – to provide help to avoid issues as a project develops
How does DAB work?
DAB’s involve itself in the pre-dispute stage to a greater or lesser extent, seeking to resolve matters before they escalate to adjudication or arbitration.
What are the relevant timescales for adjudication?
Strict timescales, requiring the adjudicator to decide in 28 days
Which Act governs adjudication?
Housing Grants, Construction and Regeneration Act 1996
What is the basic principle of adjudication?
Adjudication is the means of resolving a dispute in a fair and just manner. Without prejudice to either party
What claims is adjudication appropriate for?
Construction payment disputes
What is the aim of adjudication?
Aim is to resolve disputes quickly, in a binding contractual process
Explain the various adjudication services provided by RICS.
Two types –
Commercial
* Construction Adjudication
* Low Value Adjudication
Consumer
* Homeowner Adjudication
Explain the impact of the Housing Grants Construction and Regeneration Act 1996 (Construction Act) on dispute resolution and construction contracts.
The Housing Grants, Construction and Regeneration Act 1996 meant that payments are made promptly throughout the construction supply chain and that disputes are resolved swiftly.
Explain what the role of the RICS Low Value Dispute Adjudication service is?
The role of the Low Value Adjudication service is to allow SMEs with less complex small claims to have access to adjudication
What level of claim can this service be used for?
Any claim less than £50,000
What makes this RICS Low Value Dispute Adjudication service cost effective?
- The adjudicator limits the length of time for submission of any response
- Parties have to limit their documents to no more than one A4 lever arch file
How does homeowner adjudication work under the Construction Act?
RICS will nominate an adjudicator who is an expert in the subject matter in dispute and will use this expertise to decide the matter within 21 days
Can you tell me about PACT in relation to lease renewals?
PACT – Professional Arbitration on Court Terms
Used in lease renewal disputes where an arbitrator or independent expert is appointed
What is the role of RICS in dispute resolution?
RICS’ role is to act impartially
What RICS guidance are you aware of relating to dispute resolution, ADR or roles in dispute resolution?
RICS Guidance Note – Conflicts of Interest for Members acting as dispute resolvers 2017
Key principle –
* Every dispute resolver must act impartially
Tell me about your role if you were acting as an expert witness /advocate.
If I was acting as an expert witness –
* My duty is to the court and not to the client
* I am to provide an impartial unbiased opinion
* Confirm my facts are true
* NOT accept an incentive fee – it will be on an hourly basis
What is the difference between the two?
Expert witness – duty is to the court and not the client. Must act impartially
Advocate – duty to represent the client. Must be competent to act
How does your duty of care differ in the two roles?
Expert witness my duty of care is to the courts and not the client.
Advocate the duty of care is to the instructing client.
What tribunals are you aware of?
The Lands Tribunal
When might the Lands Tribunal be involved in a dispute?
Lands Tribunal is involved in a dispute when methods of ADR have failed and not been able to resolve the issue
What are the differences between conflict avoidance and dispute resolution?
Conflict avoidance – this is where you negotiate contractual obligations carefully and transparently to avoid conflicts arising
Dispute resolution – this involves 3 key steps
1. Negotiating
2. Mediation or conciliation
3. Adjudicative process
Which dispute resolution procedures lead to a binding decision?
- Arbitration
- Independent Expert
What is a Scott Schedule and when would one be used?
A Scott table is used to analyse two parties’ differences / issues causing the dispute. It can be used for ADR or court proceedings to clearly identify the areas in dispute.
Explain the RICS conflict avoidance pledge to me.
The conflict avoidance pledge is being put forward to avoid large dispute bills in property & construction supply chain. It is asking organisations to join and is trying to embed conflict avoidance mechanisms into projects
How would you vary your approach if you were dealing with a personal interest?
-Discuss with my team the personal interest
-Declare personal interest with the client
-Make them aware of their involvement
-Step away from the conflict and let someone else take on the
-Client is a relation to an employer
-Speak to both teams to see whether there was a conflict
-Notify with the client and get INFORMED CONSENT
-Happy to proceed, conflict of interest,
What is the RICS Dispute Resolution Service?
Oldest and largest provider of ADR, it holds numerous dispute resolution and avoidance services in numerous areas:
- Arbitration
- Independent expert determination
- PACT
Independent expert determination?
- Appointed by the agreement of both parties
- Legally binding
- Specialist knowledge in this area
Surveyors role in dispute resolution service?
Appointed by party to adopt 2 distinct roles in tribunal Dispute resolver
- Expert witness
- Advocate
Acting as an Expert witness?
Must adhere to the rules of the tribunal
Act in accordance with RICS Practice Statement and Guidance note for Surveyors acting as expert witness, 2023
Primary duty – it to the tribunal not the party
Only accept instruction if you have knowledge and expertise and appropriate qualifications
unbiased
Why were there recent changes to RICS Practice Statement and Guidance note for Surveyors acting as expert witness, 2023
Increased concern about the quality of expert witnesses being performed by RICS members
Acting as an advocate?
Review disputes in front of arbitrator
Owes duty to their client
Adhere to RICS Practice Statement and Guidance note for Surveyors acting as advocates 2014
