Conflict avoidance, management and dispute resolution procedures Flashcards
(34 cards)
What is a conflict?
A disagreement or dispute between two or more individuals or groups
When do disputes arise in your role?
Fees, payment, delays (taking too long to respond), differences in professional opinion
What can you do if negotiations break down?
Dispute resolution procedures, such as mediation or conciliation.
What is a conflict of interest?
A situation where a person or entity has a personal or financial interest that conflicts with their professional duties to act in the best interest of the client.
What do the RICS Rules of Conduct say about avoiding conflicts of interest?
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.
Give examples of ways that conflict can be avoided.
When a potential or actual conflict of interest arises, I follow a structured approach in line with RICS professional standards. First, I identify and assess the type of conflict, whether it’s an existing, potential, or perceived conflict. I keep a clear written record of the circumstances and inform my line manager or compliance lead immediately.
If a conflict is confirmed or likely, I disclose it to the client at the earliest opportunity, ensuring transparency. I will only proceed if I am satisfied that the conflict can be appropriately managed and that doing so will not compromise the interests of any party involved. In such cases, I seek informed consent from all relevant parties before continuing.
Where the conflict involves different departments within the firm, I consider whether appropriate information barriers or non-disclosure agreements are necessary to protect confidential information and maintain professional integrity.
What are the benefits of clear contract documentation?
Reduces the risk of disputes, ensures all parties understand their obligations, supports legal enforceability, improves project delivery, and protects against misunderstandings or ambiguities
What is partnering or alliancing?
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.
How can good client management reduce conflict?
Good client management reduces conflict by setting clear expectations, maintaining open and regular communication, addressing concerns early, and building trust through transparency and professionalism.
Give examples of good payment practices.
Agreeing clear payment terms in writing before starting work
Issuing timely and accurate invoices
Paying contractors on time
Using payment schedules for staged projects
Resolving payment queries or disputes promptly and fairly
What are the three pillars of dispute resolution?
Negotiation – A direct discussion between parties to reach a mutual agreement.
Mediation – A facilitated process by a neutral third party to help parties settle the dispute voluntarily.
Adjudication/Arbitration – A binding decision made by a third party, used when other methods fail.
How do mediation and conciliation differ globally? Why is this important to be aware of?
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.
What is Alternative Dispute Resolution (ADR)?
Anything but the litigation or court proceedings:
negotiations, mediation, arbitration
Why might you prefer to pursue ADR rather than litigation through the Courts?
Faster process,
more flexible,
cost efficient
What would you do if you identified a perceived/actual conflict of interest?
Understand the conflict and disclose it to all parties. Ask for informed consent only if certain that the conflict can be managed and all of the relevant clients’ interests will be served by you
doing the work.
Obtaining Informed Consent requires proper professional judgment, and careful execution with every affected party.
Can you tell me about any RICS guidance relating to conflicts of interest?
RICS professional statement Conflict of Interest, effective from January 2018
What is the practice of dual agency/double dipping?
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.
What is the difference between an arbitrator and an independent expert?
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.
Can you tell me about mediation/conciliation/adjudication?
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, to come to a binding decision
What governs dispute resolution during insolvency or bankruptcy proceedings?
Federal Law No. 9/2016 (the “Bankruptcy Law”) is the primary legislation governing insolvency and restructuring proceedings in the UAE
What is a Dispute Review or Recommendation Board (DRB)?
DRB process is a dispute resolution in construction projects, providing an impartial and independent review of disputes and promoting dialogue and collaboration between the parties.
DRB 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.
What is a Dispute Adjudication Board (DAB)? How do these work?
The DAB is responsible for adjudicating disputes that arise during the construction process.
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.
What are the relevant timescales for adjudication?
The Adjudicator is to reach their decision within 28 days
What is the basic principle of adjudication?
The adjudicator must listen to both sides of the argument, review evidence, and apply the law to the facts presented. 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 arbitration.
