Conflict avoidance, management and dispute resolution procedures (Level 1)

Question 1

What is a conflict?

Answer 1

A conflict is an active disagreement between people with opposing opinions or principles.

Question 2

When do disputes arise in your role?

Answer 2

Disputes arise during rating cases when challenging the current rateable value and during lease renewal instructions where terms of the lease cannot be agreed.

Question 3

What can you do if negotiations break down?

Answer 3

If negotiations break down during a rating instruction< i can advise my client of their opportunity to appeal the decision at valuation tribunal.
During a lease renewal, I can advise my client of their options to serve a calderbank offer and make an application to the courts or PACT.

Question 4

What is a conflict of interest?

Answer 4

A conflict of interest is when someone’s judgement or actions at work are - or could be - affected by something unconnected with their role.

Question 5

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

Answer 5

An RICS member or regulated firm must not advise or represent a client where doing so would involve a Conflict of Interest or a significant risk of a Conflict of Interest; other than where all of those who are or may be affected have provided their prior Informed Consent.

Question 6

Give examples of ways that conflict can be avoided.

Answer 6

In a confidential information conflict, an information barrier can be set up to ensure parties are acting ethically.

Question 7

Why is good management important?

Answer 7

Good management is important as it manages expectations of the client and can reduce the risk of conflicts arising during the instruction.

Question 8

What are the benefits of clear contract documentation?

Answer 8

Avoids disputes about the terms agreed in the contract.

Question 9

What is partnering or alliancing?

Answer 9

Partnering is a broad term used to describe a collaborative management approach that encourages openness and trust between parties to a contract

Question 10

Why is good project or instruction management important?

Question 11

How can good client management reduce conflict?

Answer 11

Good client management can reduce conflict by managing their expectations for an instruction, and being honest, open and transparent will allow the client to trust your informed opinion.

Question 12

Give examples of good payment practices.

Answer 12

Pay suppliers on time, within agreed terms; Give clear guidance to suppliers on terms, dispute resolution and prompt notification of late payment

Question 13

How can good record keeping avoid conflict?

Answer 13

Good record keeping can avoid conflict as it provides evidence of the work conducted. Should any conflicts arise the evidence kept can be handed to the client to keep them satisfied.

Question 14

How do reporting and proactivity reduce conflict?

Answer 14

Reporting provides the clients updates on the instruction and an understanding of the progress made throughout the instruction.

Question 15

What are the three pillars of dispute resolution?

Answer 15

1 Negotiation;
2 Mediation
3 Adjudication

Question 16

Give examples of each.

Answer 16

Negotiation -
Expert appraisal
This is a process in which an expert, chosen on the basis of his or her knowledge of the area in dispute, investigates the dispute and provides advice as to the facts of the dispute and possible, probable or desirable outcomes and how these may be achieved.

Mediation -
Concilliation is a voluntary process in which a professional facilitator assists employers and employees to resolve disputes when their own unassisted efforts have not succeeded.

Adjudication -
Litigation is resolving legal disputes in the UK courts by presenting evidence before a judge or jury, then deciding on the case.

Question 17

How do mediation and conciliation differ globally?

Answer 17

Mediation is an alternative form of dispute resolution and relies in bringing in an impartial third party to mediate and guide a decision. Mediation encourages the coming together of parties and reaching an agreement.
Conciliation is similar to mediation and relies on an independent third party to aid reaching an agreement. The conciliators role is to act primarily as the messenger and to encourage diplomacy.

Question 18

Why is this important to be aware of?

Question 19

What is Alternative Dispute Resolution (ADR)?

Answer 19

Alternative dispute resolution (ADR) is the term used to describe ways of resolving a dispute without having to go to court.

Question 20

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

Answer 20

Court proceedings are lengthy, costly and can cause significant bad feeling between parties. The process can also be stressful, and the level of formality can be intimidating. ADR, on the other hand, can be a much quicker process – for example, adjudication can be completed within 28 days and mediation can even help find a resolution in one day.

Question 21

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

Answer 21

In receiving an enquiry to assist in the negotiations for lease renewal, I requested the name of the parties involved. I searched my companies CRM system to ensure that the other party was not an active client, nor did i have any personal interest in the matter.

Question 22

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

Answer 22

I would inform the parties of the identified conflict of interest. If the parties were happy to proceed with instruction, I would request their Prior Informed Consent in writing.
The affected party can only give Informed Consent if the person explaining the position to them:
– is entirely transparent about any material factors and
– is sure that the party affected understands what they are doing (including the risks involved and any alternative options available) and is doing it willingly.

Question 23

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

Answer 23

Conflicts of interest 1st edition, March 2017
Effective from 1 January 2018
An RICS member or regulated firm must not advise or represent a client where doing so would involve a Conflict of Interest or a significant risk of a Conflict of Interest; other than where all of those who are or may be affected have provided their prior Informed Consent.

Question 24

What is the practice of dual agency/double dipping?

Answer 24

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.

Question 25

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

Answer 25

CONFLICTS OF INTEREST – UK COMMERCIAL PROPERTY MARKET INVESTMENT AGENCY
1st edition, May 2017
Effective from 1 January 2018

The practice of dual agency within the UK commercial property investment market
is not generally accepted. Consequently dual agency must not be undertaken under any
circumstances.

Question 26

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

Answer 26

An arbitrator will use the evidence presented to form an opinion, whereas an independent expert will use their industry knowledge, experience and expertise provide the opinion.

Question 27

Can you tell me about any other types of ADR?

Question 28

Can you tell me about mediation/conciliation/adjudication?

Answer 28

Mediation is an alternative form of dispute resolution and relies in bringing in an impartial third party to mediate and guide a decision. Mediation encourages the coming together of parties and reaching an agreement.
Conciliation is similar to mediation and relies on an independent third party to aid reaching an agreement. The conciliators role is to act primarily as the messenger and to encourage diplomacy.
Adjudication relies on an independent third party who considers the claims of both parties, a binding decision is made by the adjudicator which can be appealed either through litigation or arbitration. Arbitration is time sensitive with a decision made within 28 days.

Question 29

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

Answer 29

The TCC is a specialist court with specialist judges who deal with all types of construction, engineering and technology disputes both from within the UK and which arise internationally.

Question 30

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

Question 31

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

Answer 31

The CPR were designed to improve access to justice by making legal proceedings cheaper, quicker, and easier to understand for non-lawyers.

Question 32

What does CPR Practice Direction 35 relate to?

Answer 32

Part 35 is intended to limit the use of oral expert evidence to that which is reasonably required. In addition, where possible, matters requiring expert evidence should be dealt with by only one expert.

Question 33

What governs dispute resolution during insolvency or bankruptcy proceedings?

Question 34

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

Answer 34

Dispute Review Boards can informally assist the parties (if they so require) to resolve any disagreements which arise during the course of the contract works. The members can make recommendations or decisions regarding issues and disputes referred to them by any of the contracting parties.

Question 35

How does this process work?

Answer 35

issue recommendations that are not immediately binding on the parties, however, become so if no party objects within 30 days.

Question 36

What is a Dispute Adjudication Board (DAB)?

Answer 36

DAB can resolve disputes in real time, and thereby enable the Parties to plan their future activities based on the reasoned decision of experienced, independent and impartial persons who are familiar with the execution of projects and administration of construction contracts.

Question 37

How do these work?

Answer 37

Dispute Adjudication Boards (DABs) issue decisions that must be complied with immediately.

Question 38

What are the relevant timescales for adjudication?

Answer 38

Adjudication is fast – it’s a process that takes 28 days from start to finish (longer if agreed between the parties. Arbitration has a much more judicial “feel” about it and can take months or years to run its course.

Question 39

Which Act governs adjudication?

Answer 39

the Housing Grants, Construction and Regeneration Act 1996

Question 40

What is the basic principle of adjudication?

Answer 40

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 41

What claims is adjudication appropriate for?

Answer 41

Adjudication Is Appropriate For Resolving Claims Relating To: Interim payments. Delay and disruption of the works. Extensions of time for completion of the works.

Question 42

What is the aim of adjudication?

Answer 42

Adjudication refers to the legal process of resolving a dispute or deciding a case.

Question 43

Explain the various adjudication services provided by RICS.

Answer 43

Commercial
Construction Adjudication
The Housing Grants Construction and Regeneration Act 1996 (the Construction Act) 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.

Low Value Adjudication

The procedure provides for a streamlined and cost-effective process, under which, e.g.:

The Adjudicator is expected to limit the length, or time for submission of any statement, response or argument
The parties are required to limit their documents to no more than one A4 lever arch file (or electronic equivalent) per submission.
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 28 days.

Summary Adjudication
Parties can apply for the nomination of a qualified adjudicator who will be able to deliver a summary decision, with outline reasons only, restricted to one A4 page, within fourteen days of referral. There will be no inspection or site visit involved and the fee will be capped at £1000 + VAT. If either party wants full reasons, they will be able, at their own expense, to ask the adjudicator to produce them, once the summary adjudication has been completed.

Question 44

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

Answer 44

The Housing Grants Construction and Regeneration Act 1996 (the Construction Act) 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.

Question 45

What timeframe is relevant under this?

Answer 45

The Housing Grants Construction and Regeneration Act 1996 (the Construction Act) 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.

Question 46

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

Answer 46

The procedure provides for a streamlined and cost-effective process, under which, e.g.:

The Adjudicator is expected to limit the length, or time for submission of any statement, response or argument
The parties are required to limit their documents to no more than one A4 lever arch file (or electronic equivalent) per submission.
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 28 days.

Question 47

What level of claim can this service be used for? low value dispute adjudication

Answer 47

a low cost adjudication procedure to resolve disputes where the sum claimed is less than £100,000 and do not involve multiple or complex issues.

Question 48

What makes this process cost effective? low value dispute adjudication

Answer 48

The procedure provides for a streamlined and cost-effective process, under which, e.g.:

The Adjudicator is expected to limit the length, or time for submission of any statement, response or argument
The parties are required to limit their documents to no more than one A4 lever arch file (or electronic equivalent) per submission.
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 28 days.

Question 49

How does homeowner adjudication work under the Construction Act?

Answer 49

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.

In some cases, building works on residential homes are carried out under a form of contract known as the JCT Building Contract for a Homeowner/Occupier. This form of contract includes specialist provisions tailored for dealing with disputes between commercial businesses (e.g. builders) and consumers (e.g. homeowners).

Question 50

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

Answer 50

PACT is a process where the determination of all or some of the terms of a renewal lease is (with the consent of both parties) ‘delegated’ to an independent third party who may act either as an arbitrator or as an independent expert.

Question 51

What is the role of RICS in dispute resolution?

Answer 51

provider of alternative dispute resolution (ADR) services in the land, property and construction industries

Question 52

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

Answer 52

Conflict avoidance and dispute resolution in construction
RICS Professional Guidance, UK
1st edition, guidance note

Question 53

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

Answer 53

Upon accepting an instruction to act as an expert witness, you assume a responsibility to the tribunal and to RICS to provide truthful, impartial and independent opinions, complete as to coverage of relevant matters.

Question 54

What is the difference between the two?

Answer 54

Arbitrator makes judgement based on the evidence provided. An expert makes judgement on their professional opinion.

Question 55

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

Question 56

What tribunals are you aware of?

Answer 56

Valuation tribunal
he Tribunal hears and determines disputes that are made by ratepayers and/or council tax payers because they are challenging decisions taken by the local council or the Valuation Office Agency (VOA) on their council tax or business rates.

Upper tribunal
he Upper Tribunal is a superior court of record, giving it equivalent status to the High Court and meaning that it can both set precedents and can enforce its decisions (and those of the First-tier Tribunal) without the need to ask the High Court or the Court of Session to intervene.

Lands tribunal
The Lands Tribunal resolves a range of disputes about the value of land and buildings, and about their occupation, use or development.

Question 57

When might the Lands Tribunal be involved in a dispute?

Answer 57

compensation for the compulsory purchase of land. discharge or modification of land affected by a ‘restrictive covenant’ compensation for the effect on land affected by public works.

Question 58

What are the differences between conflict avoidance and dispute resolution?

Question 59

Which dispute resolution procedures lead to a binding decision?

Answer 59

Arbitration: Decisions are binding.

Question 60

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

Answer 60

A Scott Schedule is a schedule or table which is used in court proceedings in the Family Court in order to clearly set out the allegations which are in dispute.

Question 61

Explain the RICS conflict avoidance pledge to me.

Answer 61

The RICS Conflict Avoidance Process (CAP) is a contractual mechanism which helps parties avoid prolonged and damaging disputes. The purpose of CAP is to enable contracting parties to identify and dispose of emerging disputes early.

Question 62

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

Answer 62

Conflicts of interest for members acting as dispute resolvers
2nd edition, November 2020

The aim of this 2nd edition guidance note is to provide advice on dealing with possible conflicts of interest for surveyors who are appointed to resolve disputes. It also helps all parties involved in a dispute to understand the main principles and considerations, and to be aware of when an involvement may develop into a conflict of interest.

Question 63

When was this last updated and what changes were made? Conflicts of interest for members acting as dispute resolvers
2nd edition, November 2020

Answer 63

This 2nd edition guidance note is effective from 1 February 2021
The aim of this 2nd edition guidance note is to provide advice on dealing with possible conflicts of interest for surveyors who are appointed to resolve disputes. It also helps all parties involved in a dispute to understand the main principles and considerations, and to be aware of when an involvement may develop into a conflict of interest.

Question 64

What RICS guidance relates to expert witnesses?

Answer 64

Surveyors acting as expert witnesses
4th edition, amended February 2023