Conflict avoidance, management and dispute resolution procedures

Question 1

What is a conflict?

Answer 1

A conflict is a struggle and a clash of interest, opinion, or even principles. Conflict will always be found in society; as the basis of conflict may vary to be personal, racial, class, caste, political and international.

Question 2

When do disputes arise in your role?

Answer 2

When land owners believe their land is of a higher value than what the comparable evidence shows.

Different departments within Berkeley - for example Technical team saying it’s not possible to build here because of restricted access.

Question 3

What can you do if negotiations break down?

Answer 3

You have the ability to choose from alternative dispute resolution processes, such as:
- Mediation
- Arbitration
- Independent expert determination

Question 4

What is a conflict of interest?

Answer 4

A conflict of interest arises in a situation where there may be an actual, perceived or potential risk that the professional judgement of an RICS-regulated firm or member will be compromised when undertaking an assignment.

Question 5

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

Answer 5

Rule 1

Example behaviours 1.3 - 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.

1.4 - 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 ways that conflict can be avoided?

Answer 6

Conflict avoidance and conflict management…

1. Communicate effectively - allow other person to share their view without interruption and avoid judgement
   - When sharing your POV, speak from your perspective and avoid making assumptions
2. Form connections with others - strengthening relationships with others can help with preventing conflict
3. Know your conflict style

Question 7

Why is good conflict management important?

Answer 7

Conflict management is essential because it helps to create a positive work environment, improve communication, and boost productivity. Conflict management is not about avoiding conflicts but rather dealing with them in a constructive manner.

Question 8

Why is good management important?

Answer 8

It ensures objectives are met through a transparent process and that a high standard of service is being provided, which is part of the rules of conduct.

It helps in Achieving Group Goals - It arranges the factors of production, assembles and organizes the resources, integrates the resources in effective manner to achieve goals. It directs group efforts towards achievement of pre-determined goals

Question 9

What are the benefits of clear contract documentation?

Answer 9

Provides evidence of what was agreed between you and the other party.

It helps prevent future misunderstandings or disputes by making the agreement clear from the beginning.

Question 10

What is partnering or alliancing?

Answer 10

Alliancing involves a formal contract in which the parties undertake to act in the best interests of the project and this is a key difference from partnering where the undertaking to act in such a manner is purely voluntary.

Question 11

Why is good project or instruction management important?

Answer 11

It ensures that what is being delivered is correct.

Project management builds and allows teams to be happy and motivated who know their work matters. Moreover, it enables organisations to deliver the right thing to their customers and clients.

Question 12

How can good client management reduce conflict?

Answer 12

It enables a good relationship with them based on openness trust and respect.

Question 13

Give examples of good payment practices

Answer 13

Good reporting - reports should be published twice a year and within 30 days from the end of each reporting period.

Question 14

How can good record keeping avoid conflict?

Answer 14

Keeping copies of emails, minutes of meetings and telephone calls you can reduce conflict because it is clearly documented what is required and ensures that the key action points are being met.

Question 15

How do reporting and and proactivity reduce conflict?

Answer 15

Keeping good records with sufficient level of detail can often help to resolve conflicts before the escalate.

Question 16

What are the three pillars of dispute resolution?

Answer 16

1. Negotiation
2. Mediation or conciliation (third party intervention)
3. Adjudicative process (litigation)

Question 17

Who introduced the 3 pillars of dispute resolution?

Answer 17

Professor Green of Boston University

Question 18

Give examples of the 3 pillars of resolution

Answer 18

Negotiation - two parties agree mutually on a contract
Mediation or conciliation - this is used when issues are unable to be resolved by negotiation
Adjudicative process - last resort

Question 19

How do mediation and conciliation differ globally?

Answer 19

Mediation outcomes can vary and differ in complexity due to cultural differences. Different cultures have set values and beliefs. When these come into play, mediators are challenged to draw on additional skills to assist parties reach a mediated outcome.

Cross-cultural situations can seem daunting for some practitioners and seen to be an advantage by others.

Question 20

Why is it important to be aware of?

Answer 20

So you can try to understand their point of view…. unsure

Question 21

What is Alternative Dispute Resolution? (ADR)

Answer 21

Alternative dispute resolution (ADR) is the term used to describe ways of resolving a dispute without having to go to court. There are many different forms of ADR, but the one thing they have in common is that they all have the potential to resolve a dispute without any court involvement. This is why it is referred to as ‘alternative’ – it’s an alternative to litigation (settling in a court of law). (RICS)

Question 22

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

Answer 22

ADR is flexible, cost-efficient, time-effective and gives the parties more control over the process and the results

Question 23

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

Question 24

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

Question 25

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

Answer 25

RICS Professional Statement: Conflicts of Interest, 2017.

It provides clear rules for RICS members and regulated firms to identify and manage potential conflicts of interest.

It provides clarification on:
Competing bidders
Effective date/transition
Conflicts arising during professional assignments
Passing confidential information to insurers and legal advisors.

Question 26

What is the practice of dual agency/double counting?

Answer 26

Dual agency arises where the same surveyor represents both buyer and seller in relation to the sale of a real estate investment, taking a fee from both parties for the same deal in what is frequently, if not always, a conflict of interest.

It was banned in 2018.

Question 27

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

Answer 27

RICS Professional Statement: Conflicts of interest - UK Commercial Property Market Investment Agency, 2017

Question 28

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

Answer 28

Arbitrator:
Evidence - only what is provided to them by both parties
Appeal - limited to right to appeal
Negligence - not liable for negligence and cannot be sued
Law - Arbitration Act 1996
Costs - power to award costs

Independent Expert:
Evidence - they are able to include their own evidence
Appeal - there is no right to appeal
Negligence - can be liable for damages
Law - no legislation
Costs - power over their own costs
Guidance note - Independent Expert Determination, 2016

Question 29

Can you tell me about any other types of ADR?

Answer 29

Early neutral evaluation - use of an indecent person, experienced in the subject matter of the dispute, to give non-binding opinion

Mediation - a neutral mediator who facilitates discussions between the two parties

Question 30

Can you tell me about mediation/conciliation

Answer 30

A mediator helps to clarify and prioritise issues, crystallise needs, reality check and assist parties in search for solutions. They are facilitators who guide and manage the parties through a process of controlled negotiations to avoid escalation of conflict.

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.

Question 31

Can you tell me about arbitration?

Answer 31

The objective of adjudication is to reach fair, rapid and cost-effective decisions on disputes arising under construction contracts, usually within a 28 day timeframe.

Question 32

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

Answer 32

The TCC primarily deals with litigation of disputes arising in the field of technology and construction

Question 33

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

Question 34

Explain the role of the Civil Procedure Rules (CPRs)

Answer 34

Consumer Protection Regulations 2008 - ensure that businesses, organisation and members act fairly; we must provide accurate information and avoid practices that are unfair and misleading

Question 35

What does CPR Practice Direction 35 relate to?

Question 36

What governs dispute resolution during insolvency or bankruptcy proceedings?

Answer 36

The Insolvency Act 1986

Question 37

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

Answer 37

An independent panel of impartial professionals providing guidance to resolve project issues and mitigate their impact during an active construction project.

Question 38

How does a Dispute Review or Recommendation Board (DRB) work?

Answer 38

An agreement between the owner and the party constructing the project creates the board and describes its role and responsibilities. The board cannot make decision unless it is clearly stated in the contract.