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Conflicts > Conflict Avoidance - L1 > Flashcards

Conflict Avoidance - L1 Flashcards

1
Q

What is a conflict?

A

A disagreement or argument, implies protracted one and implies severity

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2
Q

When do disputes arise in your role?

A
  • Money
  • Delays
  • Defects
  • Different objectives or different professional opinion
  • Personalities / emotions
  • Historic context
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3
Q

What can you do if negotiations break down?

A
  • Formal dispute resolution e.g. litigation, mediation, negotiation
  • Partnering techniques e.g. to find common agreement or commitments
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4
Q

What is a conflict of interest?

A

Conflict of interest arises when a firms’ independence and impartiality is threatened due to the existence of a conflict between two clients e.g. financial interest, personal interest, commercial relationships, acting on both sides of transaction

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5
Q

What do RICS RoC say about avoiding conflicts of interest?

A

Rule 1: Members and firms identify actual and potential Conflicts of Interest throughout a professional assignment and do not provide any advice or services where a COI or a significant risk of one arises, unless they do so in accordance with the current edition of Conflicts of Interest, RICS Professional Statement

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6
Q

Give examples of ways that conflict can be avoided.

A
  • Risk management
  • Early warning signs
  • Partnering techniques
  • Clear briefs
  • Regular communication
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7
Q

What is risk management?

A

Identifying the causes of disputes to minimise or avoid them

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8
Q

What are the early warning signs in relation to dispute avoidance?

A

Identifying early symptoms of problems

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9
Q

Why is good management important?

A
  • Proactivity and planning work load helps raise issues of concern and provides confidence in surveyors ability
  • Proactive management and preparation helps prevent disputes
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10
Q

What are the benefits of clear contract documentation?

A
  • Disputes arise from ambiguities in contract documentation
  • Should capture specific details of the project and identify risks and set strategy to resolve
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11
Q

What is partnering or alliancing?

A

Agreement to pursue mutual goals and objectives prior to proceeding might be with aid of neutral facilitators

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12
Q

Why is good project or instruction management important?

A
  • Proactively managing time, money and risk
  • Involved addressing difficult issues
  • Allocating responsibility for any or all items not adequate
  • Even if not project manager, surveyor should apply project management techniques to their services
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13
Q

How can good client management reduce conflict?

A
  • Understand client objective and approach is valuable and maintaining good lines of communication
  • Build sufficient rapport to avoid a situation where client incorrectly believes surveyor is in control of all
  • Surveyor should warn client about issues and problems and discuss how issues should be dealt with
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14
Q

Give examples of good payment practices.

A
  • Payments made promptly
  • Payments made in accordance with agreement in terms of value
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15
Q

How can good record keeping avoid conflict?

A
  • Disputes can be resolved by retrospectively looking back at records
  • Proper record of labour, plant, materials is important
  • Daily record of site activities and progress reports
  • Record of resource movement, when change occurs, why change occurred and what impact
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16
Q

How do reporting and proactivity reduce conflict?

A
  • Regular monitoring cost, progress, quality is important e.g. form of minutes, progress reports, drop lines on programme
  • Raise and manage issues causing delay
  • Increase cost or quality of product as soon as practicably possible
  • Actions should be recorded and tracked towards conclusion
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17
Q

What are the three pillars of dispute resolution?

A

1 Negotiation - problem solving efforts of parties themselves
2 Mediation or Conciliation - third party intervention which does not bind parties
3 Adjudicative Process - an outcome is determined by a third party such as litigation / arbitration

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18
Q

Who introduced these terms?

A
  • Professor Green, Boston University
  • Negotiation e.g. neutral fact finding
  • Mediation e.g. conciliation
  • Adjudication e.g. litigation, arbitration, expert determination
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19
Q

How do mediation and conciliation differ globally?

A

Mediation is a neutral facilitator whereas under conciliation the mediator is required to express their opinion

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20
Q

Why is this important to be aware of?

A

If instructed to act then distinction is important between the two services

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21
Q

What is Alternative Dispute Resolution?

A

Procedures to resolve conflicts between parties without resorting to litigation

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22
Q

What is litigation?

A

Process of parties taking legal action through the Courts

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23
Q

What governs litigation in the Courts?

A

Civil Procedure Rules 1998

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24
Q

What are the issues with litigation?

A
  • Public process so no confidentiality
  • Costly and time efficient way of resolving: length, rent, repair obligations, service charge, alienation, break clauses
  • Strict procedures
  • Lay judges may not have expertise in property
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25
Q

What are the benefits of ADR?

A
  • Cheaper than litigation
  • Quicker than litigation
  • Flexible process not governed by the CPR
  • Can be confidential
  • Can involve specialists / experts rather than lay judges
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26
Q

What is mediation?

A

Confidential process where a neutral party facilitates negotiations between the parties

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27
Q

What is conciliation?

A

Confidential process where a neutral party facilitates negotiations between the parties and expresses their opinion on the dispute

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28
Q

What is adjudication?

A

Statutory UK dispute resolution procedure to provide an interim binding decision

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29
Q

What is arbitration?

A

Third party receives written evidence or verbal evidence at a hearing from the parties’ representatives and makes a legally binding decision

30
Q

What is expert determination?

A

Third party provides an expert opinion on the dispute

31
Q

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

A

1 Conflict Avoidance - decide whether conflicy is irresolvable
2 Written Advice to Both Parties - disclose nature of conflict clear as possible and request informed consent
3 Manage conflict - e.g. using information barrier

32
Q

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

A
  • An RICS firm must not advise or represent a client where doing so would involve a COI or a significant risk of a COI
  • Other than where affected firm has provided Informed Consent
33
Q

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

A

Conflict of Interest, First Edition March 2017

34
Q

What is the practice of dual agency / double dipping?

A

Dual agency is defined by the RICS as where an agent has a contractual agency relationship with both the seller and the buyer at the same time. Must not be undertaken

35
Q

Can you tell me about any RICS guidance relating to dual agency / double dipping?

A
  • RICS formally banned double dipping 1 January 2018
  • Conflict of Interest, First Edition March 2017
36
Q

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

A

Arbitrator:
* Governed by Arbritration Act 1996
* Third party receives evidence and makes legally binding decision
* Arbitrator powers of discovery (i.e. disclosure of documents or calling witnesses to give evidence)
* Limited grounds for appeal and not liable for negligence
Independent Expert:
* Appointed by the parties to give expert opinion on the dispute
* May be required to consider evidence
* May have to give a reasoned determination
* Not legally binding and not liable for negligence

37
Q

Can you tell me about any other types of ADR?

A
  • Mediation
  • Conciliation
  • Adjudication
38
Q

What is the Technology & Construction Court and what is its role?

A

TCC is the part of the High Court that deals with construction related litigation

39
Q

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

A
  • BBB Protected Tenants Lease Valuation
  • Dispute over tenancy value determined by an Independent Valuer who’s decision is final and binding except in case of manifest error
40
Q

Explain the role of the Civil Procedure Rules (CPRs).

A
  • Civil Procedure Rules 1998 the overriding objective is to enable the court to deal with cases justly
  • Before commencing court proceedings expect both parties to understand each other’s position, try and settle without proceedings, support efficient management of proceedings, consider ADR
    Stages of action are:
  • Particulars of Claim
  • Submission of defence
  • Legal disclosure
  • Preparation and submission of witness statements
  • Exchange of expert witness evidence
  • Trial
41
Q

What does CPR Practice Direction 35 relate to?

A

Hot tubbing / concurrent evidence - judge chairs discussion with experts of same discipline / counsel with agenda based on Joint Statement

42
Q

What governs dispute resolution during insolvency or bankruptcy proceedings?

A
  • Insolvency Act governs proceedings disputes with associated insolvency
  • Beyond scope of Conflicts Avoidance Guidance Note 2012 and specialist advice sought
43
Q

What is a Dispute Review or Recommendation Board (DRB) and how does this process work?

A
  • Three dispute board members appointed at start of a project
  • Become familiar with the project and documentation
  • If / as issues arise they are asked for non-binding recommendation
  • Recommendations used to resolve disputes and prevent formal disputes
44
Q

What is a Dispute Adjudication Board (DAB) and how does this process work?

A

Similar to DRB however they make formal written decisions which bind the parties in which the dispute arises

45
Q

What are the relevant timescales for adjudication?

A

28-42 days statutory UK dispute resolution

46
Q

Which Act governs adjudication?

A

Adjudication is governed under Housing Grants, Construction and Regeneration Act 1996

47
Q

What is the basic principle of adjudication?

A
  • Statutory UK dispute resolution process akin to simple arbitration
  • Reaches an interim binding decision until the dispute is finalised by another process e.g. litigation, arbitration, mutual agreement
48
Q

What claims is adjudication appropriate for?

A
  • Construction and engineering contracts, construction, repairing, refurbishment
  • Not apply to residential occupier
  • Neither does it apply for drilling, extracting gas, minerals, tunnelling, boring, demolition of plant
49
Q

What is the aim of adjudication?

A

To reach fair, rapid, cost effective decision on disputes arising under construction contracts usually within a 28 day timeframe

50
Q

Explain the various adjudication services provided by RICS.

A

The RICS runs the RICS Dispute Resolution Service - largest provider of ADR services

51
Q

Explain the impact of the Housing Grants Construction and Regeneration Act 1996 (Construction Act) on dispute resolution and construction contracts.

A

Housing Grants Construction and Regeneration Act 1996 allows any party to a construction contact to refer a dispute to a 28-day procedure under where the matter is decided by an independent adjudicator

52
Q

What timeframe is relevant under this?

A

28 days

53
Q

Explain what the role of the RICS Low Value Dispute Adjudication service is.

A
  • Construction adjudication is costly
  • Collaboration with Construction Industry Council (CIC) where to develop a low-cost adjudication procedure
  • Provides uncomplicated structure and programme to manage disputes
54
Q

What level of claim can this service be used for?

A

Resolves sums of less than £50,000

55
Q

What makes this process cost effective?

A
  • Adjudicator is expected to limit length, time of submission statement response or argument
  • Parties are forced to document no more than one A4 lever arch file per submission
56
Q

How does homeowner adjudication work under the Construction Act?

A
  • Unless both parties agree, Construction Act adjudication does not automatically apply where one party is a residential occupier and works are carried out on the home
  • Works undertaken under the JCT Building Contract for Homeowner / Occupier for specialist disputes between business and homeowners
57
Q

What is the role of RICS in dispute resolution?

A
  • The RICS run the Dispute Resolution Service
  • The RICS published practice statement on dispute resolution
58
Q

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

A
  • Conflict of Interest, First Edition March 2017
  • Conflict Avoidance and Dispute Resolution in Construction
  • Surveyors Acting as Expert Witnesses 2023
59
Q

Tell me about your role if you were acting as an expert / witness / advocate.

A

Expert witness:
* Provide a statement of truth within evidence which must be independent and unbiased within scope of experience / knowledge
* State facts and assumptions relied upon without exception
* Statements must be impartial and uninfluenced
Advocate:
* Owe a duty of care to clients
* Owe a duty to act fairly and to maintain integrity
* Objective and truthful all the time
Are allowed to advance interpretations in evidence that are advantageous to their client however not conceal evidence or distort evidence

60
Q

What is the difference between the two?

A
  • Expert witness is impartial and uninfluenced
  • Advocate act on behalf of client
61
Q

How does your duty of care differ in the two roles?

A

As expert witness you have a primary duty of care to the court and cannot act on an incentivised or a contingency fee basis

62
Q

What tribunals are you aware of?

A
  • Valutaion Tribunal
  • Lands Tribunal
63
Q

When might the Lands Tribunal be involved in a dispute?

A
  • Decision about rates made by Valuation Tribunal (England and Wales)
  • Compensation for CPO
  • Discharge or Modification of Restrictive Covenant
  • Compensation of land affected by restrictive covenant
  • Compensation effect on land for public works
  • TPO
  • Damage to land from mining
  • Right to light dispute
  • Electronic Communication Code - disputes on masts
64
Q

What are the differences between conflict avoidance and dispute resolution?

A
  • Conflict Avoidance: clear strategic planning. Proactive conflict avoidance techniques e.g. risk analysis, risk registers
  • Dispute Resolution: procedure to resolve conflicts once arisen
65
Q

Which dispute resolution procedures lead to a binding decision?

A
  • Arbitration
  • Litigation
66
Q

What is a Scott Schedule and when would one be used?

A
  • Table of inputs from claimant and respondent
  • Identifies the questions the judge has to decide
  • Claimant sets out response first and respondent responds
  • Used in litigation in court
67
Q

Explain the RICS conflict avoidance pledge.

A
  • Believe in collaborative working
  • Use early intervention techniques in supply chain
  • Embed conflict avoidance techniques to assist prevent formal adversarial dispute resolution
  • Work proactively to avoid conflict and resolve dispute
  • Develop capability to identify early disputes
  • Promote collaborative working
  • Commit to work with industry partners to promote conflict avoidance mechanism
68
Q

What RICS guidance relates to conflicts of interest for dispute resolvers?

A

Conflicts of Interest for Members Acting as Dispute Resolvers, 2nd Edition

69
Q

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

A

The Commercial Rent (Coronavirus) Act 2022

70
Q

Explain the proposed provisions of the Commercial Rent (Coronavirus) Bill.

A
  • The Commercial Rent (Coronavirus) Act 2022
  • A legally binding process for eligible commercial landlords and tenants who have debts occurred because of the pandemic and have not yet reached an agreement
  • The law applies to commercial rent debts of businesses including pubs, gyms and restaurants which were mandated to close

Conflicts (1 decks)

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