Conflict Avoidance and Dispute Resolution Procedures

Question 1

What are the types of conflict?

Answer 1

• Party Conflict – the duty of the member to act in the interests of two clients/parties in relation to the same professional assignment.
• Own Interest Conflict – where your duty to act in the best interests of a client conflicts with your own interests in relation to a professional assignment
• Confidential Information Conflict – a conflict to provide material information to one client, and the duty of the member to another client to keep that information confidential.

Question 2

What is informed consent?

Answer 2

• Consent given willingly by a party who may be affected by a Conflict of Interest, as long as the party is aware of the COI and that it may affect the ability of the firm to act fully in the interests of the client

Question 3

What is an information barrier?

Answer 3

• Physical or electronic separation of individuals or groups to prevent confidential information passing between them.

Question 4

Why was dual agency or ‘double dipping’ banned?

Answer 4

• Where the agent had a contractual relationship with both the buyer and seller at the same time
• This was banned unless informed consent and the use of an information barrier was used.

Question 5

What dispute resolution procedures are you aware of?

Answer 5

• Negotiation
• Mediation
• Adjudication
• Arbitration

Question 6

Process of Mediation?

Answer 6

• A neutral mediator facilitates negotiation between the two parties.
• Sit in two rooms and the mediator goes between parties.
• Confidential and informal process.
• Conducted on a without prejudice basis.
• The mediator cannot impose a resolution on the parties.

Question 7

Process of Adjudication – Section 108 Housing Grants, Regeneration and Construction Act 1996.

Answer 7

• The adjudicator acts to determine the dispute between the parties in a contractual process.
• The adjudicator comes to a legally binding decision, can only be challenged by arbitration or in court.
• A party can give notice any time of the intention to adjudicate, must appoint within 7 days.
• Must reach a decision in 28 days
• Advantages of speed with a clear conclusion

Question 8

Process of Arbitration

Answer 8

• Arbitrator takes on a quasi-judicial role
• Parties are bound by the decision
• Arbitrator will have specialist knowledge of the subject area
• Decision can only be overruled by a court on a point of law
• Fast, cost effective and confidential

Question 9

What is a key difference between mediation and the other forms of ADR?

Answer 9

• The ability to find a resolution is within the control of the parties in dispute.

Question 10

What does without prejudice mean?

Answer 10

• A rule which prevents statements made in a genuine attempt to settle an existing dispute, whether made in writing or orally, from being put before the court as evidence against the party which made them.
• In order for communication to be without prejudice it must be a genuine attempt to settle.

Question 11

What is a Part 36 offer?

Answer 11

• Part 36 of the Civil Procedure Rules
• An offer to settle disputes without going to trial, made on a without prejudice save as to costs basis.