Conflict avoidance, management and dispute resolution procedures

Question 1

What is a conflict?

Answer 1

Clash of interest and an active disagreement

Question 2

When do disputes arise in your role?

Answer 2

Fee dispute

Question 3

What is a conflict of interest?

Answer 3

When an individuals independence or impartiality is affected due to a conflict between two parties or another influence (buyer and seller)

Question 4

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

Answer 4

Rule 1 - 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

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 5

Give examples of ways that conflict can be avoided.

Answer 5

Clear, concise drafting of the contract or lease

Risk analysis - of what could go wrong and how misinterpretation might go wrong

Managing all parties expectations - serving appropriate notices

Transparency in negotiation

Keep good file records

Question 6

What can you do if negotiations break down?

Answer 6

Mediator- A neutral mediator who facilitates discussions between two parties

Independent Expert- Either pointed by the President of the RICS or directly appointed by the parties to a dispute

Arbitrator- Main difference is that you are governed by Arbitration Act 1996. Decision made based on only what is provided by either party. Does allow each party to provide further evidence to counter claims.

Question 7

What are the benefits of clear contract documentation?

Answer 7

Reduces the chance of misinterpretation which can lead to a disagreement in understanding and therefore conflict

Question 8

What is partnering or alliancing?

Answer 8

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

Question 9

What are the three pillars of dispute resolution?

Answer 9

There are three main processes available in dispute resolution:

Negotiation - problem solving efforts of the parties themselves
Mediation - Third party intervention - assists them but does not bind them to a decision
Adjudicative process: outcome is determined by a third party (litigation and arbitration)

Question 10

Give examples of the three pillars of dispute resolution

Answer 10

Negotiation - business contract negotiation / labour negotiation
Mediation - Neighbour dispute / workplace conflict
Arbitration - Consumer dispute

Question 11

How do mediation and conciliation differ globally?

Answer 11

Mediation is supported by an unbiased third-party mediator. With conciliation, the conciliator will play an advisory role and may intervene in order to offer feasible solutions to both parties and help settle their disputes.

Question 12

What is Alternative Dispute Resolution (ADR)?

Answer 12

Alternative dispute resolution, or external dispute resolution, typically denotes a wide range of dispute resolution processes and techniques that parties can use to settle disputes with the help of a third party. They are used for disagreeing parties who cannot come to an agreement without going to court litigation

Question 13

Why is it important to understand the difference between mediation and conciliation?

Answer 13

Enforceability: In some jurisdictions, mediated settlements may have different levels of enforceability compared to conciliated settlements. Understanding these legal implications is important for the enforceability of any resulting agreement.

Question 14

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

Answer 14

Advantages of ADR:

Speed - court is lengthy
Informality - greater opportunity for negotiation outside of court
Cost - less professional fees
Protects Confidentiality

Question 15

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

Answer 15

Motspur Park - when instructing an architect I learnt that a member of their teamlived in the local area and highlighted a potential conflict of interest to my manager. We spoke with the consultant who agreed that they would have a conflict of interest working on the scheme, as the gas holder structures are of local significance

Question 16

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

Answer 16

Three step process:

1) Conflict avoidance - consider if the conflict is irresolvable because impartiality is compromised, or whether it can be properly managed through transparency and openness. Decided whether you want to accept or decline the works

2) Written Consent - if accept, you need to set out in writing to both parties:

• The nature of the conflict and how you plan to deal with it
• Be as clear as you can and ensure both parties make their own decision
• Request written confirmation from both parties of their informed consent that they are ok

3) Conflict management - Set up an information barrier between the two parties affected throughout the instruction

Question 17

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

Answer 17

There is guidance set out in Rule 1 of the RICS Rules of Conduct

RICS Professional Statement - Conflict of Interest (2017) - mandatory statement setting out how conflicts should be managed and details surrounding obtaining informed consent.

Question 18

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

Answer 18

RICS Professional Statement - Conflicts of interest – UK commercial property market investment agency - says no double dipping

Question 19

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

Answer 19

Arbitrator is appointed in a quasi-judicial role in accordance with the Arbitration Act 1996. Parties are bound by decision.

Independent expert - is appointed by the two parties

Question 20

Can you tell me about any other types of ADR?

Answer 20

Mediation: uses a neutral mediator to facilitate discussion between the two parties. They’ll assist but will not advice nor make a decision

Arbitration - an arbitrator is appointed in a quasi-judicial role in accordance with the arbitration act 1996. Parties are bound by the decision. They can order a hearing or consider written representations.

Adjudication - commonly used for construction payment disputes. Adjudicator uses their knowledge to reach a legally binding decision in a contractual process. Must decide within 28 days.

Independent Expert determination - Independent expert is appointed by the two parties or by RICS present in some cases. Parties are bound by the decision

Question 21

Can you tell me about mediation/conciliation/adjudication?

Answer 21

Role of the Mediator: The mediator’s role is to facilitate communication and negotiation between the parties. They do not impose a decision or solution but help the parties explore issues, generate options, and find common ground.

Role of the Conciliator: The conciliator plays a facilitative role similar to a mediator but may also provide expert opinions or recommendations based on the information gathered.

Role of the Adjudicator: The adjudicator reviews the evidence presented by the parties, listens to arguments, and then issues a legally binding decision, often referred to as a judgment or ruling.

Question 22

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

Answer 22

think about this answer.

Question 23

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

Answer 23

The Civil Procedure Rules (CPRs) are a set of rules and procedures that govern civil litigation in the courts of England and Wales. They play a crucial role in the legal system by providing a structured framework for how civil cases are conducted and resolved

Question 24

What does CPR Practice Direction 35 relate to?

Answer 24

Practice Direction 35 (PD 35) in the Civil Procedure Rules (CPR) of England and Wales relates to expert evidence in civil proceedings. PD 35 provides guidance and rules regarding the use of expert witnesses and the presentation of expert evidence in court cases.

Question 25

What governs dispute resolution during insolvency or bankruptcy proceedings?

Answer 25

Insolvency Act 1986

Question 26

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

Answer 26

A Dispute Board or DRB (Dispute Review Board) can best be described as a ‘job-site’ dispute adjudication device, typically comprising three independent and impartial persons selected by the contracting parties.

Question 27

What is a Dispute Adjudication Board (DAB)?

Answer 27

Disputes Adjudication Board (DAB) is an impartial and independent panel who are ideally appointed at the start of project and give decisions on any disputes. When requested by both the Employer and the Contractor the DAB shall be available to give advice or opinions on any matter relevant to the contract.

Question 28

What are the relevant timescales for adjudication?

Answer 28

28 days to give a decision

Question 29

Which Act governs adjudication?

Answer 29

Housing Grants, Construction and Regeneration Act 1996 - deal with the process of adjudication for construction disputes

Question 30

What is the basic principle of adjudication?

Answer 30

The basic principle of adjudication according to RICS is to provide a fast and cost-effective means of resolving disputes in the construction and property sectors. Meaning you can avoid litigation in court

Question 31

What claims is adjudication appropriate for?

Answer 31

Construction payment disputes since the Housing Grants, Construction and Regeneration Act 1996 deals with the process of adjudication for construction disputes

Question 32

What is the aim of adjudication?

Answer 32

Swift, efficient and cost effective. Means you can avoid the length litigation process

Question 33

Explain the various adjudication services provided by RICS.

Answer 33

Construction Adjudication
Low Value Dispute Adjudication - where sum is less than £100,000 - targeted toward SMEs
Summary Adjudication - claims below £20,000 - in response to COVID
Homeowner Adjudication - 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

Question 34

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

Answer 34

For SMEs where the dispute sum claimed is less than £100,000

Question 35

How does homeowner adjudication work under the Construction Act?

Answer 35

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 36

What is the role of RICS in dispute resolution?

Answer 36

RICS Dispute Resolution Service (DRS) is the world’s oldest and largest provider of alternative dispute resolution (ADR) services in the land, property and construction industries.

offer a range of world class dispute resolution and avoidance services

and provide ADR training programmes

Question 37

Give an example of adjudication or arbitration relevant to your pathway

Answer 37

Conflict over interpretation and implementation of planning conditions:

Arbitration - would involve a hearing and an arbitrator was appointed in a quasi-judicial role who had specialist knowledge on the subject. They may be a surveyor but appointed in line with the Arbitration Act 1996. Parties bound by the decision.

There may be a conflict in regard to a construction payment onsite. The adjudication process would be followed.

Adjudicator with specialist knowledge of the subject and jurisdiction would then reach a legally binding decision on the outcome following an informal hearing. This decision would be made within 28 days,.

Question 38

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

Answer 38

RICS Dispute Resolution Service (DRS): RICS DRS provides guidance on dispute resolution processes and services, including arbitration, mediation, and adjudication.

RICS Guidance Note Conflicts of Interest for Members Acting as Dispute Resolvers (2020) - primarily assist those who are appointed to act in a dispute resolution. - Every dispute resolver should be impartial. Key themes are independence and impartiality

Question 39

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

Answer 39

Expert witness- when a surveyor provides evidence to a judicial or quasi-judicial body it is as an expert witness. Duty of care is to the court or dispute resolution panel and not to the client. Must act impartially and unbiased

A surveyor acting for a client as an advocate, represents their client at a judicial heating/tribunal. Advocates have a duty solely to their client. Must maintain integrity and be competent to act.

Question 40

What tribunals are you aware of?

Answer 40

Lands Tribunal- land and property rights- boundary disputes /adverse possession etc. Handles land and property disputes

a tribunal is a specialized legal body that resolves disputes in various areas,

Question 41

When might the Lands Tribunal be involved in a dispute?

Answer 41

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

Question 42

What are the differences between conflict avoidance and dispute resolution?

Answer 42

Conflict Avoidance is proactive, focusing on preventing conflicts before they arise through open communication and collaboration.

Dispute Resolution is reactive, addressing conflicts that have already occurred through formal processes like arbitration, mediation, or litigation.

Question 43

Which dispute resolution procedures lead to a binding decision?

Answer 43

Arbitration, Independent Expert Determination, adjudication and litigation

Question 44

Explain the RICS conflict avoidance pledge to me.

Answer 44

The RICS Conflict Avoidance Pledge (CAP) is an initiative by the Royal Institution of Chartered Surveyors (RICS) aimed at promoting collaborative working practices and reducing disputes in the construction and infrastructure sectors. The CAP encourages parties involved in construction and infrastructure projects to commit to conflict avoidance and early intervention strategies, with the goal of preventing disputes from arising or escalating.

Question 45

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

Answer 45

RICS Guidance Note Conflicts of Interest for Members acting as Dispute Resolves (2020)