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APC Revision 2023 > Conflict Avoidance, Management and Dispute Resolution (Level 1) > Flashcards

Conflict Avoidance, Management and Dispute Resolution (Level 1) Flashcards

1
Q

What is a conflict?

A

A conflict is a state of disagreement on ideas, facts or beliefs

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2
Q

When do disputes arise in your role?

A

Negotiating fees
Decisions on strategy
Assessing value
Assessing risks

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3
Q

Why is good conflict management important?

A
  • Ensure legal compliance and maintain ethical standards
  • Ensure you are providing the best possible service to your client
  • Maintenance of business relationships
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4
Q

What is partnering or alliancing?

A

An alliance is a collaboration between individual companies for mutual profit

A partnership is a merging of individual interests for mutual profit

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5
Q

How can good client management reduce conflict?

A

Clear understanding of needs and objectives ensures you can act in the best interest of the client and avoid disagreement

Management of expectations – if you are clear from the outset then the client is less likely to disagree

Personable approach – makes the client know you care and likely to be more understanding

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6
Q

What are the three pillars of dispute resolution?

A
  1. Negotiation
  2. Mediation
  3. Adjudication
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7
Q

What is negotiation?

A

Negotiation
- process of working out an agreement by direct communication. It is voluntary and non-binding

e.g negotiating contract terms

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8
Q

What is mediation?

A

Mediation
- private, informal process in which parties are assisted by one or more neutral third parties in their efforts towards settlement

e.g dispute in a development contract

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9
Q

What is adjucidation?

A

Adjudication
- Adjudication is a 28-day, short-form dispute resolution procedure that aims to resolve the disputes without the need to undertake long and costly court procedures and therefore assist cash flow

  • It was introduced by a key piece of legislation in the construction industry, which is called the Housing Grants Regeneration and Construction Act 1996
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10
Q

How do mediation and conciliation differ globally?

A

Mediation aims to reach an agreement between parties and it’s enforceable by law.

Conciliation aims to come to a settlement agreement and it is executable as a decree of civil court

Mediation is a more informal process than conciliation. Unlike a conciliation commission, the mediator does not have the authority to issue formal orders or decisions.

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11
Q

What is Alternative Dispute Resolution (ADR)?

A

Alternative dispute resolution (ADR) refers to the different ways people can resolve disputes without a trial. Common ADR processes include mediation, and arbitration

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12
Q

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

A

Cheaper
Quicker
More confidential

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13
Q

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

A
  • Assess the nature or type of conflict in place
  • Report the conflict to the client, my line manager and the compliance team
  • Review whether there is a way for the conflict to be managed appropriately, if there is ask the client for informed consent to proceed
  • If not reject the instruction
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14
Q

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

A

Arbitrator
- Arbitrators are governed by the Arbitration Act 1996, which sets out the requirements for their role and proceedings.
- An Arbitrator ‘Awards’

Independent Expert
- There is no legislation governing the role of an Independent Expert. The role is instead governed by the lease, together with the RICS guidance; Independent - Expert Determination (1st Edition)
- Independent Expert issues a ‘Determination’

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15
Q

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

A

Technology and Construction Court is a specialist group of courts, part of the Business and Property Court of the High Court of Justice, including both the High Court and the County Court.

The Technology and Construction Court handle disputes about buildings, engineering and surveying.

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16
Q

What value cases does the Technology and Construction Court usually deal with?

A

Don’t normally handle cases with a value of less than £250,000 unless there is a good reason, eg the case involves a new or difficult point of law or the case is international.

17
Q

What does an NEC contract set out in relation to dispute resolution?

A

NEC Contract

Two tier approach
- First step is adjudication
- Second step is arbitration or litigation

18
Q

What does a JCT contract set out in relation to dispute resolution?

A

JCT Contract

Refers to five methods of dispute resolution: negotiation; mediation; adjudication; arbitration; and legal proceedings.

One of these methods, adjudication, is a statutory right, and if one party wishes to use this method, the other must concu

19
Q

Explain the role of the Civil Procedure Rules (CPRs)

A

Civil Procedure Rules are a procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.

20
Q

What governs dispute resolution during insolvency or bankruptcy
proceedings?

A

Insolvency Act (1986)
Enterprise Act (2002)

21
Q

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

A

DRBs provide a confidential forum in which difficulties or disputes can be resolved. They are not set up to apportion blame but rather to resolve issues that have arisen in a way that allows the project to proceed smoothly

22
Q

What are the relevant timescales for adjudication?

A

The Adjudicator is to reach their decision within 28 days, following the service of the Notice of Intention to Adjudicate.

This can be extended by 14 days with the consent of the Referring Party

23
Q

Which Act governs adjudication?

A

Construction Act (1996) - allows any party to a construction contract in the UK to refer a dispute, at any time, to a 28-day procedure under which the matter will be decided by an independent adjudicator.

24
Q

What is the basic principle of adjudication?

A

The adjudicator’s decision is binding and enforceable unless and until the dispute is resolved by litigation/arbitration or by agreement of the parties

25
Q

What claims is adjudication appropriate for?

A

Adjudication is Appropriate For Resolving Claims Relating To:

  • Interim payments.
  • Delay and disruption of the works.
  • Extensions of time for completion of the works.
26
Q

Explain the various adjudication services provided by RICS.

A

RICS offers the following adjudication services:

Commercial
- Construction Adjudications
- Low Value Adjudication - adjudication procedure to resolve disputes where the sum claimed is less than £50,000 and do not involve multiple or complex issues
- Summary Adjudication - for claims below £20,000.

Consumer
- Homeowner Adjudication

27
Q

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

A

Allows any party to a construction contract in the UK to refer a dispute, at any time, to a 28-day procedure under which the matter will be decided by an independent adjudicator.

28
Q

How does homeowner adjudication work under the Construction Act?

A

Unless both parties agree, Construction Act adjudication does not apply automatically to a contract where one party is a residential occupier and the contract works have been carried out on their home.

RICS will nominate an adjudicator who is an expert in the subject matter in dispute and will use this expertise to decide the matter within 21 days.

29
Q

Can you tell me about PACT in relation to lease renewals?

A

PACT (Professional Arbitration on Court Terms) is a procedure whereby both parties agree that the determination of the terms of the new lease will be delegated to an independent third party

30
Q

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

A
  • RICS Global Professional Statement on Conflicts of Interest (2017)
  • RICS Guidance Note Complaints Handling (2016)
  • Alternative Dispute Resolution (ADR) Mechanisms – UK and Ireland (2022)
31
Q

What is the difference between expert witness and an advocate?

A

Expert Witness – role is to assist the court and give independent objective evidence

Advocate - a qualified, trained staff or volunteer whose duties are to offer assistance to victims and any dependents in legal matters relevant to their situation

32
Q

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

A

Expert Witness - The expert witness also owes a duty to the court to assist with all matters within their expertise, and this duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.

Advocate - advocates must: Not knowingly or recklessly deceive or mislead the court or allow another person to do so

33
Q

What are the differences between conflict avoidance and dispute
resolution?

A
  • Conflict avoidance is avoiding conflict in the first place
  • Dispute resolution is resolving conflict once it has taken place
34
Q

Which dispute resolution procedures lead to a binding decision?

A

Arbitration – the decision the arbitrator makes is legally binding

35
Q

Explain the RICS conflict avoidance pledge to me

A

The RICS Conflict Avoidance Pledge is a network of construction industry professionals committed to conflict avoidance and early intervention

36
Q

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

A

RICS Guidance Note Conflicts of Interest for Members Acting as Dispute Resolvers (2020)

  • Updated November 2020
  • Aim of this guidance note is to provide advice on dealing with possible conflicts of interest for surveyors who are appointed to resolve disputes
37
Q

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

A

The Act introduces a binding arbitration process for when business landlords and tenants in England and Wales can’t agree how to deal with outstanding rent built up during periods of coronavirus restrictions

38
Q

What form of ADR will be used to recover commercial rent arrears due to Covid?

A

Legally binding arbitration process to resolve certain outstanding commercial rent debts related to the pandemic

APC Revision 2023 (34 decks)

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