Conflict avoidance, management and dispute resolution procedures

Question 1

What is a conflict?

Answer 1

A disagreement, dispute, or clash between two or more individuals or groups

Question 2

When do disputes arise in your role?

Answer 2

Fees, payment, delays (taking too long to respond), differences in professional opinion

Question 3

What can you do if negotiations break down?

Answer 3

Dispute resolution procedures, such as mediation or conciliation

Question 4

What is a conflict of interest?

Answer 4

A situation where a person or entity has a personal or financial interest that conflicts with their professional duties or responsibilities

Question 5

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

Answer 5

Act with integrity: Members must act honestly and avoid conflicts of interest that could compromise their professional judgement.

Declare any potential conflicts: Members must declare any potential conflicts of interest as soon as they become aware of them.

Obtain informed consent: Members must obtain informed consent from clients and others involved in a transaction when a conflict of interest exists.

Take appropriate action: Members must take appropriate action to manage or avoid conflicts of interest.

Question 6

Give examples of ways that conflict can be avoided.

Answer 6

Record keeping, disclose any potential conflict to the client.
You should only seek Informed Consent in order to proceed if you are satisfied that all of the relevant clients’ (or other parties’) interests will be served by you doing the work.

Question 7

What are the benefits of clear contract documentation?

Answer 7

Establish scope of work, avoid misunderstanding, avoid disputes, manage risks

Question 8

What is partnering or alliancing?

Answer 8

Partnering or alliancing is a collaborative approach to project delivery that involves establishing a long-term partnership or alliance between two or more organizations in order to achieve common goals.

Question 9

How can good client management reduce conflict?

Answer 9

Build trust, strong relationship, clear communication, manage expectations, proactive problem solving, listening and being empathetic, flexibility and compromise

Question 10

Give examples of good payment practices.

Answer 10

Clear payment terms, prompt invoicing, payment reminders

Question 11

What are the three pillars of dispute resolution?

Answer 11

Negotiation, mediation, and arbitration

Question 12

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

Answer 12

Mediation is a process where a neutral third party, known as a mediator, helps the parties in a dispute to negotiate a settlement. The mediator does not make a decision or impose a solution, but rather helps the parties to identify and address the underlying issues and interests that are driving the dispute.
In contrast, conciliation is a process where a neutral third party, known as a conciliator, actively intervenes in the dispute and makes recommendations for a resolution. The conciliator may provide expert advice or make proposals for settlement, and the parties may be required to accept the recommendations in order to reach a resolution.

Question 13

What is Alternative Dispute Resolution (ADR)?

Answer 13

Anything but the litigation or court proceedings:
negotiations, mediation, arbitration

Question 14

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

Answer 14

Faster, more flexible, cost efficient

Question 15

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

Answer 15

Once I receive a formal requirement from the client to provide valuation services, I undertake conflict of interest check which is standard in my firm: sending the email to all employees of the firm detailing the potential mandate, client company name, point of contact, property type, if it is an existing client or no and asking to confirm if there is any potential conflict that could be present.

Question 16

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

Answer 16

Disclose the conflict to all parties informed, ask for a permission to proceed, if informed consent received from all parties involved, only proceed g with the work (and seek Informed Consent in order to proceed) if you are
satisfied that all of the relevant clients’ interests will be served by you
doing the work.
You should not seek Informed
Consent in order to proceed because your firm’s interests are served by doing so. Obtaining Informed Consent is a process that requires proper consideration, professional judgment, and careful execution with every affected party.

Question 17

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

Answer 17

RICS professional statement Conflict of Interest 1st edition March 2017, effective from January 2018

Question 18

What is the practice of dual agency/double dipping?

Answer 18

Dual agency, also known as double dipping, 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’. It must not be undertaken under any circumstances.

Question 19

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

Answer 19

An arbitrator is appointed to resolve a dispute between two or more parties, while an independent expert is appointed to provide an opinion or advice on a particular issue.
An arbitrator has the authority to make a binding decision that is enforceable in a court of law, while an independent expert does not have the power to make a binding decision.

Question 20

Can you tell me about mediation/conciliation/adjudication?

Answer 20

Mediation: a confidential process where a neutral party facilitates negotiations between the parties.
Conciliation: similar to mediation, although a conciliator is also required to express their opinion on the dispute.
Adjudication: the legal process by which an arbiter or judge reviews evidence and argumentation, including legal reasoning set forth by opposing parties, to come to a binding decision

Question 21

What governs dispute resolution during insolvency or bankruptcy proceedings?

Answer 21

Federal Law No. 9/2016 (the “Bankruptcy Law”) is the primary legislation governing insolvency and restructuring proceedings in the UAE

Question 22

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

Answer 22

DRB process is an effective form of dispute resolution in construction projects, providing an impartial and independent review of disputes and promoting dialogue and collaboration between the parties.
When a dispute arises, the parties present their respective positions to the DRB, and the DRB reviews the evidence and provides a non-binding recommendation or review of the dispute. The parties may use the DRB’s recommendation as a basis for settlement negotiations, or they may choose to pursue other forms of dispute resolution if they are unable to reach an agreement.

Question 23

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

Answer 23

A DAB is typically established at the outset of the project and consists of one or three independent experts who are knowledgeable about the technical aspects of the project. The DAB is responsible for adjudicating disputes that arise during the construction process.
When a dispute arises, the parties present their respective positions to the DAB, and the DAB reviews the evidence and makes a binding decision or award on the dispute. The decision of the DAB is typically final and binding, subject to any right of appeal that may be available under the contract or applicable law.

Question 24

What are the relevant timescales for adjudication?

Answer 24

The Adjudicator is to reach their decision within 28 days

Question 25

What is the basic principle of adjudication?

Answer 25

The adjudicator must listen to both sides of the argument, review evidence, and apply the law to the facts presented in order to render a decision. The adjudicator must remain neutral and unbiased, and must base the decision solely on the merits of the case. A key aspect of adjudication is that the adjudicator’s decision is binding and enforceable unless and until the dispute is resolved by litigation/arbitration or by agreement of the parties.

Question 26

What claims is adjudication appropriate for?

Answer 26

Contract disputes, property, employment, personal injury claims, intellectual property disputes

Question 27

What is the aim of adjudication?

Answer 27

The aim of adjudication is to resolve legal disputes between parties in a fair and impartial manner. The aim of this process is to provide a resolution to the dispute that is legally binding and enforceable.

Question 28

Explain the various adjudication services provided by RICS.

Answer 28

Dispute Resolution Service: RICS offers a dispute resolution service that provides an alternative to court proceedings for resolving disputes related to property and land. The service includes mediation, expert determination, and arbitration, and is designed to be cost-effective and efficient.

Question 29

Explain what the role of the RICS Low Value Dispute Adjudication service is. What level of claim can this service be used for? What makes this process cost effective?

Answer 29

Adjudication process that provides a cost-effective and efficient way of resolving low-value disputes in the construction and property sectors.
The LVDA service is designed for disputes with a value of up to £50,000 and involves the appointment of an independent RICS-accredited adjudicator to make a binding decision on the dispute.
Cost effective - written submissions instead of court hearings; no court fees

Question 30

What is the role of RICS in dispute resolution?

Answer 30

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

Question 31

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

Answer 31

Surveyors acting as expert witnesses, 4th edition
Independent Expert Determination
Surveyors Acting as Advocates
Surveyors Acting as Adjudicators
Surveyors Acting as Arbitrators in Commercial Property Rent Reviews
Surveyors Acting as Arbitrators in Construction Disputes
Surveyors Acting as Independent Experts in Commercial Property Rent reviews

Question 32

Tell me about your role if you were acting as an expert witness/advocate. What is the difference between the two? How does your duty of care differ in the two roles?

Answer 32

When acting as an expert witness or advocate in a legal case, a property valuer is typically called upon to provide their professional opinion on matters related to property valuation, such as the value of a property, the impact of certain factors on property value, or the suitability of a property for a particular use. Expert witness - duty of care to the court or tribunal - provide unbiased objective and independent opinion
Advocate - advocate on behalf of the client, presenting the care in the most favorable light possible

Question 33

What tribunals are you aware of?

Answer 33

The Court of First Instance - civil, commercial, administrative, labour and personal status disputes.
Court of Appeal - The judgements and decisions issued by the Court of First Instance may be appealed before the Court of Appeal.
Court of Cassation - Appeal may be filed before the Cassation Court against the decision issued by the Court of Appeal in certain cases

Question 34

What are the differences between conflict avoidance and dispute resolution?

Answer 34

Conflict avoidance focuses on preventing conflicts from occurring in the first place, while dispute resolution focuses on resolving conflicts that have already arisen.

Question 35

Which dispute resolution procedures lead to a binding decision?

Answer 35

Arbitration, adjudication, litigation

Question 36

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

Answer 36

Remote mediation, remote arbitration, technology (remote hearings and video conferencing)

Question 37

What is inflation, GDP, population growth, employment rates?