Conflict Avoidance, Dispute Resolution

Question 1

What is a conflict?

Answer 1

When two or more parties have a difference of opinion.
It can be positive or negative and lead to:

o Arguments.
o Negotiation.
o Dispute resolution.
o Innovation.

Question 2

When do disputes arise in your role?

Answer 2

• Snagging delays.
• Delays with signing contracts.
• Poor performance of parties.
• Uncontrolled change.

Question 3

What can you do if negotiations break down?

Answer 3

If the process of negotiation breaks down and agreement cannot be reached, then re-scheduling a further meeting is called for. This avoids all parties becoming embroiled in heated discussion or argument, which not only wastes time but can also damage future relationships. If that fails, look to mediation or other forms of resolution

Question 4

What is a conflict of interest?

Answer 4

RICS defines a conflict of interest as ‘where an agent acts for clients who have competing interests, or where an agent’s personal interest conflicts with that/those of their client’.

The former could arise if you were to act for two competing buyers for the same property. The latter could arise when you are selling a property owned by a close family member.

Question 5

What does the RICS Rules of Conduct say about avoiding conflicts of interest?

Answer 5

RULE 1:
Members and firms identify actual and potential conflicts of interest throughout a professional assignment and do not provide advice or services where a conflict of interest or a significant risk of one arises, unless they do so in accordance with the current edition of Conflicts of interest, RICS professional statement.

Firms have effective processes to identify actual and potential conflicts of interest, to enable appropriate decisions to be made on whether to accept work, and to keep records of decisions made about actual and potential conflicts of interest.

Question 6

Give examples of approaches that lead to avoiding conflict.

Answer 6

CCSFA
• Confronting – collaborative, confront the issue rather than each other.
• Compromising – give and take.
• Smoothing – more accommodating, involves sacrifice.
• Forcing – force your view to complete disregard of the other view.
• Avoiding – postponing.

Question 7

What are the benefits of clear contract documentation?

Answer 7

• Firstly, ensure that the tender information is clear, concise when tendering the project. i.e. a clear scope of works.
• If there is a dispute, use a people approach first and try to negotiate an agreement before going legal.
• As a last resort you should go legal.

Question 8

What is partnering or alliancing?

Answer 8

Partnering (or alliancing) is a broad term used to describe a collaborative management approach that encourages openness and trust between parties to a contract. … It is most commonly used on large, long-term or high-risk contracts.

Question 9

Why is good project management important in avoiding conflict?

Answer 9

When it’s done right, it helps every part of the business run more smoothly.

1. Allows your team to focus on the work that matters (free from the distractions caused by tasks going off track or budgets spinning out of control).
2. It empowers teams to deliver results that actually impact the business’s bottom line.
3. It enables your employees to see how their work contributes to the company’s strategic goals.

Question 10

How can good client management reduce conflict?

Answer 10

Good client management - for example - regular communication, good payment practice, good record keeping, being proactive reduce the chance of conflict as there is less friction, points of frustration for the client.

Question 11

Give examples of good payment practices.

Answer 11

1. Raising invoices promptly
2. Keeping records of all client correspondence relating to payments
3. Paying invoices on time

Question 12

How can good record keeping avoid conflict?

Answer 12

It is important to keep a file on all correspondence with clients, especially in relation to big decisions, fees and instructions. If there is a dispute you can refer back to the records. Also easy for me to refer back to quickly to help with conflict avoidance.

Question 13

How do reporting and proactivity reduce conflict?

Answer 13

The client feels engaged as they receive regular reports and communication. When the client feels involved, they can share their opinions more openly throughout the project and there is less liklihood of conflict. By being proactive, the client knows that you are working hard for them and they appreciate the effort you are making, so there is less conflict.

Question 14

What are the three pillars of dispute resolution? Give examples of each.

Answer 14

The 3 Pillars of Dispute Resolution
1. Negotiation – problem solving efforts of the parties themselves.

2. Mediation or conciliation – 3rd party intervention makes a non-binding decision.
3. An adjudicative process – final outcome determined by a 3rd party who’s decision is binding.

Question 15

Who introduced these three pillar of dispute resolution terms?

Answer 15

Professor Green of Boston University.

Question 16

What is dispute resolution?

Answer 16

Dispute resolution is simply a procedure to resolve conflicts between parties.
Alternative dispute resolution (ADR) differs slightly in that it is a procedure to avoid litigation.

Question 17

How do mediation and conciliation differ globally? Why is this important to be aware of?

Answer 17

• 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.

Question 18

What is Alternative Dispute Resolution (ADR)?

Answer 18

This stands for Alternative Dispute Resolution and refers to any technique that is not litigation or arbitration.

Question 19

Why might you prefer to pursue ADR rather than litigation through the Courts?

Answer 19

• Speed – takes less time than court proceedings following the CPR.
• Informality – outside of court.
• Private/ confidential (mostly)
• Greater opportunity for negotiation
• Cost – less money on professional fees that litigation.
• Quality of decision making – as it’s made by experts in the field not judges.
• Flexibility and commerciality which may be particularly useful where there is an ongoing commercial relationship, which parties wish to preserve.

Question 20

Tell me about a conflict of interest check you have carried out.

Answer 20

When I was instructed for property management of 6 College Court I first asked within my firm and then also considered my own interests, personal and financial. I considered that I could work on the instruction objectively and independantly. Proceeded with the instruction.

Question 21

What would you do if you identified a perceived/actual conflict of interest?

Answer 21

A potential or even actual conflict may not be improper if it is properly disclosed to the client. If I believed I could properly manage the conflict and provide an unbiased service to my client I would first make full written disclosure to the client of the conflict, and if they are happy to proceed, I would receive written conversation of their understanding of it.

To overcome the party conflict I would implement an Information Barrier whereby the two surveyors would be physically and digitally separated, all files relating the to instruction would be password protected to ensure the other party cannot see and any calls related would be taken in private rooms to ensure nothing is overheard.

Question 22

What is the practice of dual agency/double dipping?

Answer 22

Where an agent had a contractual agency relationship with both the seller and buyer at the same time – must not be undertaken in any circumstances from 1st January 2018. i.e. The agent lists a house for sale and also lands the eventual buyer. When that happens, the agent retains the entire commission, but often fails to represent the best interests of one side of the transaction or the other.

Question 23

Can you tell me about any RICS guidance relating to conflicts of interest?

Answer 23

RICS Professional Statement ‘conflicts of interest’ 2017

Question 24

What are the different types of ADR?

Answer 24

• Negotiation
• Mediation and Conciliation
• Expert Determination
• Adjudication
• Arbitration
• Litigation

Question 25

What is the difference between an arbitrator and an independent expert?

Answer 25

An independent expert is appointed by the parties to give an expert opinion on the dispute.

Depending on the terms of the contract/lease, they may be required to consider evidence from the parties’ representatives, may have to give a reasoned determination and may have power to determine part/all costs.

An expert’s determination is not legally binding like an arbitrator’s award and they are liable for negligence.

Question 26

What is adjudication?

Answer 26

Adjudication is a judgmental process. The contractual rights and the facts at issue in a dispute are considered by an independent third party, who is paid by those in dispute, and he gives a decision which is temporarily binding - a similar process to Arbitration but with out the difficulty associated with finality.
In Ireland, adjudication is a statutory right under the Construction Contracts Act 2013. Adjudication is also used in the RTB, and in workplace disputes.

Question 27

Can you tell me about adjudication?

Answer 27

Main features
Adjudication is the legal process by which an adjudicator reviews the facts and legal arguments set forth by the parties in dispute to reach a decision that determines the parties’ respective rights and obligations in respect of the matters in dispute. It is designed to be a speedy process, so as to avoid resorting to lengthy and expensive court procedures. Although the result is legally only temporary, in practice, parties tend to accept the adjudicator’s decision, and very few disputes go on to litigation.
Procedures
• Notification of Adjudication from one party to another.
• From receipt of notification, parties have up to 7 days to appoint the adjudicator.
• Adjudicator will review parties cases, and make their decision within 28 days. (This can be extended to 42 days)
• The adjudicator does not have the power to award costs, unless the parties agree to grant him this power.

Advantages
1) Decision made in a short fixed-time period.
2) Determination must be adhered to until it is decided otherwise by arbitration, court, or agreement.
3) Less expensive.
4) Avoids arbitration or litigation.
Disadvantages
1) It is a temporary legal decision. Not long term.

Statutory & non- statutory legal/judicial context
The Irish government introduced statutory adjudication in relation to payment disputes under construction contracts through the enactment of The Construction Contracts Act 2013 (the “Act”). The act applies to all contracts to which the legislation relates entered into after the 25th July 2016. While statutory adjudication only relates to construction contracts, theoretically there is no reason why adjudication cannot be extended into other sectors by statute, by contract, or by agreement otherwise between the parties in dispute.

Question 28

What is conciliation?

Answer 28

Similar to mediation, although a conciliator is also required to express their opinion on the dispute.

Question 29

Can you tell me about conciliation?

Answer 29

Main features
Little difference between conciliation and mediation.
In Ireland, however, construction conciliation is a unique form of ADR fundamentally different to mediation.
Conciliation is a very successful means of resolving disputes. Anecdotal but reliable information would indicate that conciliators achieve success in about 80% of cases, whether by way of settlement or recommendation
Procedures
The parties are encouraged to make non-binding concessions to propose their own formulae for resolving the dispute, thereby providing the parties with an opportunity to negotiate a tailor-made solution that will suit their mutual needs.
If the conciliator is unable to facilitate a settlement between the parties, he/she must then issue a recommendation that will be binding upon the parties unless it is rejected by either of them within the prescribed time.
The recommendation will not be binding if it is rejected by either party within an agreed period. The recommendation is very often accepted by both parties.

Statutory & non- statutory legal/judicial context
Most conciliation provisions are silent as to the basis on which the recommendation is to be made, leaving the conciliator the option of recommending, 1) a solution that he/she thinks is most likely to resolve the dispute or, 2) reflecting the result he/she thinks an arbitrator would likely impose.
The public works contracts are an exception to this, in that they require the conciliator to make the recommendation on the basis of the parties’ strict entitlements under the contract.

Question 30

What is mediation?

Answer 30

A confidential process where a neutral party facilitates negotiations between the parties.

Question 31

Can you tell me about mediation?

Answer 31

Main features
Mediation is a private and confidential dispute resolution process in which an independent third party, the mediator, seeks to assist the parties in reaching a mutually acceptable settlement. It is a voluntary and non-binding process that only becomes binding on the parties if and when a settlement is reached. The process usually involves some level of briefing of the mediator before the mediation itself, which typically lasts a day. The mediation is attended by a ‘decision maker’ for each party and often by their legal advisers, relevant experts, and insurers (if any).
Procedures
Both parties agree to the mediation.
The mediation is without prejudice.
Information and documentation shared privately with the Mediator cannot be passed to the other party during the Mediation without express permission.
The outcome of the Mediation is only publicised if the parties so agree.
The parties are encouraged to make non-binding concessions to propose their own formulae for resolving the dispute. This allows the parties with an opportunity to negotiate a tailor made solution that will suit their mutual needs.

Statutory & non- statutory legal/judicial context
In accordance with the Mediation Act, Mediation may be suggested by either party or imposed by a Court during the course of proceedings and refusal to participate or do so in good faith may have negative cost consequences.

Question 32

If you work with contracts, explain how dispute resolution works in a contract you have worked with.

Answer 32

I do not work with contracts.

Question 33

explain the principles of direct and indirect discrimination and unconscious bias.

Answer 33

Direct discrimination occurs when someone is treated less favourably in the workplace because of a protected characteristic. Indirect discrimination occurs when a workplace policy or procedure applies to everybody, but it puts those who have a protected characteristic at a disadvantage.

Question 34

What is a Dispute Review or Recommendation Board (DRB)?

Answer 34

• A group that is assigned to a project from inception for resolving disputes or claims in a timely and equitable manner. . They are more a preventative form of dispute resolution rather than reactive, as they will try to identify where disputes may arise, and takes steps to ensure they do not happen.
• Usually being used on Massive jobs.

Question 35

How does the DRB process work?

Answer 35

GENERAL: ...
 FREQUENCY OF REGULAR MEETINGS: ...
 AGENDA FOR REGULAR MEETINGS: ...
 MINUTES OF MEETING: ...
 SUBMITTAL OF DISPUTES AND CLAIMS TO DRB: ...
 CONDUCT OF HEARING ON DISPUTES AND CLAIMS: ...
 ISSUANCE OF DRB RECOMMENDATIONS: ...
 RECONSIDERATION OF DRB RECOMMENDATIONS:

Question 36

What is a Dispute Adjudication Board (DAB)? How do these work?

Answer 36

A dispute adjudication board (DAB) aims to stop disputes over FIDIC contracts ending up in commercial arbitration. … The DAB is the first step in the dispute resolution process for these contracts, and aims to resolve disputes before they go on to more formal arbitration.

Question 37

What are the relevant timescales for adjudication? Which Act governs adjudication?

Answer 37

Timeframe of 28-extended to 42 days if both parties agree.

Question 38

What is the basic principle/ aim of adjudication?

Answer 38

It is a form of alternative dispute resolution, that is faster and less formal and less expensive that litigation. The final outcome determined by a 3rd party who’s decision is temporarily binding, and 90% of the time agreed upon. An adjudication is not finally binding but the decision must be obeyed in the interim. Resolves issues between parties.

Question 39

What claims is adjudication appropriate for?

Answer 39

In Ireland, adjudication is a statutory right under the Construction Contracts Act 2013. Adjudication is also used in the RTB, and in workplace disputes.

Question 40

Explain the various adjudication services provided by RICS.

Answer 40

DRS offers a complete range of ADR methods to
resolve property disputes including: arbitration, expert
determination, mediation, adjudication and expert witness.

Question 41

What is the role of RICS in dispute resolution?

Answer 41

RICS runs the RICS Dispute Resolution Services, which is the largest provider of ADR services.

Examples include commercial property rent reviews, construction adjudications, dilapidations disputes, mediators, neighbour dispute specialist, Professional Arbitration on Court Terms (PACT) for lease renewal, service charge disputes

The RICS also provides professional guidance on dispute resolution.

Question 42

What is the role of SCSI in dispute resolution?

Answer 42

SCSI Dispute Resolution Service provides access to a specialist panel of expert Chartered Surveyors with experience of resolving disputes relating to land, property and construction. This includes expert determination of the boundary and advice on neighbourly boundary disputes. Therefore, you do have an alternative to formal litigation. The advantage of this is that it is a quicker method of dispute resolution; it is private between the parties and is typically significantly lower in cost than court based litigation.

Question 43

What RICS guidance are you aware of relating to dispute resolution, ADR or roles in dispute resolution?

Answer 43

1. Surveyors Acting as Adjudicators in the Construction Industry (2017)
2. Conflicts of Interest for members acting as Dispute Resolvers (2020)
3. Surveyors and Lawyers involved in Tenancy Renewals Under PACT (2018)

Question 44

When do RICS get involved in a complaint?

Answer 44

Finally, a client can also complain to the RICS about the service or professionalism of a member or regulated firm, i.e. if the standard of a reasonable professional or firm has been breached.

They will not determine whether a professional’s opinion is correct or offer a second opinion and cannot resolve issues subject to Court proceedings or where another resolution mechanism exists, e.g. challenging an Award under the Party Wall Act etc. 1996.

However, RICS generally only investigate matters if they are in the public interest in order to take disciplinary action to protect the public, rather than to punish the professional or firm.

The process usually takes 6 months and there is generally no right of appeal against a decision to close a case or agree a consent order.

Question 45

Tell me about your role if you were acting as an expert witness/advocate. What is the difference between the two?

Answer 45

An Expert Witness is the role that the landlord or tenant’s surveyor will adopt at third party. They submit their expert witness evidence to the appointed third party, who will either be acting as an Independent Expert or an Arbitrator.

An Independent Expert, in contrast, is the role that the appointed third party may act as during the dispute resolution process. They will determine the level of new rent.

Both roles will be fulfilled by Chartered Surveyors, with sufficient training, qualification, knowledge and experience to fulfil the requirements of the relevant role.

Question 46

Where is your duty of care in expert witness?

Answer 46

At third party, the role of each surveyor representing the landlord and the tenant switches to being an Expert Witness. This means that they have a primary duty of care to the Court and cannot act on an incentivised or contingency fee basis. They must each include a statement of truth with their Expert Witness evidence, which must be independent and unbiased and within their scope of experience and knowledge.

They also must state the main facts and assumptions they rely on, without omitting material facts relevant to their conclusions. Essentially, this means that their representations must be impartial and uninfluenced by their client.

The full requirements of the role are set out in the RICS guidance, Surveyors Acting as Expert Witnesses (4th Edition).

Question 47

What are the differences between conflict avoidance and dispute resolution?

Answer 47

“The best way to resolve conflict is to avoid it in the first place”.

Question 48

Which dispute resolution procedures are legally binding?

Answer 48

Arbitration. Litigation.

Question 49

How has dispute resolution in the property and construction industries been used effectively during Covid-19?

Answer 49

RTB carrying out virtual hearings on Microsoft Teams.

Question 50

Salesforce – how did you deal with this dispute effectively? What investigations did you carry out?

Answer 50

By dealing with an issue on transferring booking deposits to the solicitors when a sale has closed, I learned about the
importance of clear communication and handling disputes. The solicitors complained to our mutual client that our
accounts team were delaying payments of the booking deposit, long after a sale had closed. The client stated that
the agents should receive an email notification when each sale closed and that we were at fault. However, I had not
received notification on certain units that the sale had closed.

After investigation, I identified that certain units on salesforce had no reservation tab. As such, emails notifying
me (the agent) of contracts exchanging and sales closing were not being sent. I clearly set out on an email where the
problem had arisen and sent to the client and the solicitor. I explained that it was an issue with the client’s data
management system and that once this ‘bug’ was fixed on their system, there would not be any future delays. The
client appreciated the explanation, and the dispute was diffused in a professional manner. I recorded the detail
above in the complaint log. Through this experience, I learned about early warning signs of conflict, effective
communication, and conflict avoidance.

Question 51

How did you follow your firm’s CHP?

Answer 51

Listen to the complaint. Record all details. Get all the facts. Discuss options for fixing problem. Act quickly. Keep promise. Follow up. If serious, pass to manager.

I logged this via the Customer Relationship Management System (CRM). This was then be formally logged on our CHP. Did not Notify PII as complaint was resolved quickly. If the complaint wasnt resolved quickly I would notify PI insurer as this could lead to a case of negligence.

Question 52

Salesforce - Why did you not inform the PII?

Answer 52

As the dispute was resolved quickly and both parties were satisfied. There was no threat of a PII claim. If there was, I would have reported it.

Question 53

Salesforce issue - What would you have done if you couldn’t resolve the dispute? - How would you avoid a similar scenario in future?

Answer 53

I would have discussed with my manager and asked them to take over the case. I would report the dispute to PII.

Question 54

Meadowbank snag delays – how did you deal with the complaint? What process was followed?

Answer 54

As expected, some purchasers became very frustrated, but majority understood that this delay was out of the client’s control, and they were understanding. I dealt with the dissatisfied customers by listening to their viewpoint, remaining calm, taking note of their feedback and responding with clear direction on the estimated timelines and next steps involved. I let them know that I would be back in touch every 2-3 weeks with an update. I logged all detail from conversations and copied the emails into our CRM system which automatically adds to our complaints log.

Question 55

Meadowbank Snag delays - Did you inform your firm’s PII?

Answer 55

No, as we were not required to inform PI of the snagging delays. At the end of every email/ phone communication we added a disclaimer that the snagging schedule was likely to change and that delays are very common. As estate agents, we did not make any promises on snagging timeframes, only estimations. The builders were responsible for the snagging schedule, not us. The government lockdown was nationwide, so purchasers were generally understanding.

Question 56

How have you represented a landlord at the RTB? What was your role and what was the outcome?

Answer 56

I was the landlord representative for a tenancy where the tenant missed rental payments. After multiple late payment notices, negotiations, and the tenant’s failure to comply with a rental payment plan, I issued a termination notice to the tenant for failure to pay rent. I arranged a statutory declaration signed by a solicitor to accompany the notice and I sent it by registered post. The tenant acknowledged receipt of the termination notice but would not vacate on the termination date and did not respond to any further form of communication. I brought the case to the RTB and submitted a dispute application for adjudication. I collated all evidenceincluding the lease agreement, rent book, late payment notices, termination notice, and correspondence for the adjudicators review. On the adjudication day, the tenant acknowledged the failed payments and all evidence submitted to be true. She couldn’t afford to pay rent due to personal circumstances, the tenant apologised for the lack of communication and the adjudication ended. The adjudicator deemed the termination notice to be valid and a legally binding determination order for the tenant to vacate the property was issued to both parties.

Question 57

What ADR method was used in this process?

Answer 57

Adjudication.