Conflict avoidance and dispute resolution Flashcards
What are the main methods for dispute resolution?
Mediation, adjudication, arbitration, expert determination.
What is informed consent?
When a party knows there’s a conflict of interest but still instructs the surveyor.
[Must be in writing]
What would you do if there was a landlord and tenant who both wanted you to act for them, how would you handle it internally after informed consent?
- Get another one of the firm’s surveyors to act for one of the parties - ideally in another office.
- Information barrier.
How could I still act where there was a conflict of interest?
Getting informed consent from the client.
[Must be in writing]
How would you avoid conflict of interest? Who would you speak to in your firm?
- Conflict checking software.
- Client register.
- Review recent instructions.
- Inform compliance team.
- Wouldn’t act if I felt impartiality was affected.
Can you give me 3 ADR methods and a brief explanantion for each?
- Mediation: Negotiate a settlement, not legally binding.
- Adjudication: 28-day procedure, decision legally binding but can be overturned later by court or arbitration.
- Arbitration: Similar to court proceedings but private and confidential, arbitrator’s decision (an award) is final and legally binding - court can only overturn decision in certain instances i.e. failure to follow procedure.
- Expert determination: Similar to arbitration but typically focuses on technical issue rather than legal, binding or non-binding.
What is the second stage of handling complaints if a client is unhappy with the initial response?
They can escalate it to The Property Ombudsman (TPO) or CEDR.
[DRS is for resolving contractual disputes i.e. mediation]
You mentioned a complaints handling log but as you are a sole practitioner, how can you handle all complaints and be the complaints handling officer when it is just you?
- Follow complaints handling procedure.
- Escalate to third-party if client still not happy (TPO, CEDR).
What are the 3 types of conflict?
- Confidential information (conflict between a firm’s duty to provide information to one client and their duty to another client to keep that same information confidential).
- ‘Own interest’ (same company/surveyor - interests of a firm conflict with the interests of that same firm on the same instruction).
- Party (client conflict - interests of one client conflict with another client on same instruction).
What is confidential information?
Private information that should not be shared with others.
What is the difference between arbitration and expert determination?
- Arbitration: Similar to court proceedings but private and confidential, arbitrator’s decision (an award) is final and legally binding - court can only overturn decision in certain instances i.e. failure to follow procedure.
- Expert determination: Similar to arbitration but typically focuses on technical issue rather than legal, binding or non-binding.
Is there an RICS document which discusses conflict avoidance?
Yes, Conflict Avoidance and Dispute Resolution in Construction.
Give an example of a confidential information conflict of interest and explain how you would manage it.
- If a landlord instructed me on a dilaps instruction but the outgoing tenant approached me for advice. I’ve got confidential information of the landlord’s settlement position which creates a conflict.
- To manage this, I would decline the second instruction and comply with Conflicts of Interest Professional Statement maintaining confidentiality at all times.
What would constitute an own interest conflict of interest?
If I was undertaking a TDD survey for a purchaser but had a stake in a construction company and recommended them for the work without disclosing this to the client.
What is a party conflict of interest?
When there’s an obligation to multiple parties on the same instruction e.g. if my firm is acting for the landlord on a dilaps instruction and the tenant also wants us to act for them. Need informed consent, surveyor in another office, information barrier.
