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Mandatory and Technical Competencies for APC > Conflict avoidance, management and dispute resolution procedures L1 > Flashcards

Conflict avoidance, management and dispute resolution procedures L1 Flashcards

1
Q

Name some different forms of Alternative Dispute Resolution?

A
  • Mediation.
  • Conciliation.
  • Negotiation.
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2
Q

Name some formal methods of dispute resolution?

A
  • Arbitration.
  • Litigation.
  • Adjudication
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3
Q

What would your considerations be prior to selecting a form of dispute
resolution?

A
  • The cost of dispute resolution in proportion to the claim being sought.
  • The timescales involved.
  • The impact on business relationships and reputation.
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4
Q

What is Conciliation?

A
  • This dispute resolution process is similar to mediation and relies on an independent third party to aid
    reaching an agreement.
  • The conciliator has no authority to seek evidence or call witnesses.
  • Conciliators are not able to make binding decisions.
  • The conciliators’ role is to act primarily as the messenger and to encourage diplomacy
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5
Q

What is Mediation?

A
  • This is an alternative form of dispute resolution and relies on bringing in an impartial third party to
    mediate and guide a decision.
  • The mediator tries to encourage a coming together of parties in order to facilitate a decision as opposed
    to acting only as a messenger which is the key differentiator between mediation and conciliation.
  • Mediation encourages the coming together of parties and reaching an agreement.
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6
Q

What is dispute resolution?

A

Actions and processes taken to resolve contractual disagreements between parties

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7
Q

What is negotiation?

A
  • Negotiation is where the parties reach an agreement through an informal private or facilitated
    discussion.
  • Both parties will agree to settle the dispute either at a high level or in detail and agree to be bound by
    this settlement.
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8
Q

What is your most successful negotiation?

A

Case Study - negotiating the sale of the site subject to the purchaser diverting the pipe.

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9
Q

What could indicate the success of a negotiation on a final account?

A
  • Both parties are satisfied with the outcome and feel that a fair and reasonable compromise was reached.
  • A partnering approach is adopted with both parties feeling as though their long-term relationships and
    reputations have been maintained.
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10
Q

What is adjudication?

A
  • Adjudication is a statutory form of dispute resolution procedure available in the United Kingdom.
  • It is a relatively simple and efficient method of resolving disputes without engaging in lengthy and
    expensive court proceedings.
  • 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.
  • It has the advantage of being time sensitive with a decision being made within 28 days.
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11
Q

What enforces the requirement for a building contract to contain
provisions for adjudication?

A
  • The Housing grants, Construction and Regeneration Act 1996 (Construction Act).
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12
Q

Which contracts does adjudication apply to?

A
  • It applies to all construction contracts entered into after the act commenced within England, Scotland
    and Wales.
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13
Q

What if a building contract does not contain provisions for
adjudication?

A
  • Parties still have the statutory right to adjudication assuming the contract qualifies under the
    construction act.
  • Failing this the Scheme for construction contracts will apply in its entirety.
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14
Q

Please explain your understanding of the arbitration process?

A
  • Arbitration is a procedure for the resolution of disputes which is under the control of the parties.
  • Certain conditions must be met for example a genuine dispute or difference between the parties must
    have occurred with an award being capable of enforcement.
  • A binding agreement must be reached to escalate the matter to arbitration.
  • The proceedings are undertaken in a private setting meaning the reputations of both parties can be
    preserved to an extent.
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15
Q

Can you explain in detail the difference between arbitration and
litigation procedures?

A
  • Arbitration:-
    o Arbitration is governed by the Arbitration Act 1996.
    o In order to arbitrate there must be an agreement to enter into arbitration by both parties.
    o Parties have a wide degree of discretion as to how the proceedings are conducted.
    o Procedures are similar to litigation with formal submissions by both parties, expert evidence,
    hearings and a decision by the arbitrator.
    o It is a private process.
  • Litigation:-
    o Litigation differs in that proceedings are conducted in court.
    o It is a public process that follows civil procedure rules.
    o Despite having high costs the process can deal with multi-party disputes and civil procedure
    rules which aim for accessibility, speed and efficiency.
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16
Q

How Might You Avoid a Conflict Arising in The First Place?

A
  1. Clear Contractual Obligations
  2. Proactive Conflict avoidance Analysis
  3. Manging Expectations
  4. Keeping Good Records
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17
Q

What are the Three Main Processes Available to Solve Disputes?

A
  1. Negotiation (Parties involved working it out)
  2. Mediation / Reconciliation (Third party intervention that doesn’t bind parties to a decision but assists the resolution)
  3. Adjunctive Process: An Outcome is determined by a third party, such as litigation or arbitration.
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18
Q

What is Alternative Dispute Resolution (ADR)

A

Dispute resolution processes that fall outside the scope of the court, they are used because they are quicker and less costly, and the outcome may be better informed (decided by a surveyor not judge).

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19
Q

Can You Give Some Examples of ADR Mechanisms?

A

(1) Mediation (RICS Guidance Note on Mediation 2014) – A neutral mediator is used to facilitate discussion between two parties. Mediator has decision authority, and cannot impose an outcome.
(2) Arbitration An Arbitrator with specialist knowledge is appointed under the Arbitration Act 1996 by the parties or RICS President. Parties are bound by the decision. The Arbitrator Cannot be sued for Negligence as they only use information provided by the parties. Their decision can be overruled by the Court of Appeal. Surveyors have to pass to Chartered Institute of Arbitrators Exams.
(3) Independent Expert An independent witness is appointed by the two parties (or by the president of the RICS if the two parties are using the RICS Dispute Resolution Service). They will have expert knowledge on the subject matter. Both Parties are bound by the decision. There is an RICS Panel of Independent Experts.

20
Q

What Exams do Surveyors Need to Pass to Become An Arbitrator?

A

They need to qualify and pass the Chartered Institute for Arbitrators Exams.

21
Q

What Document Has the RICS Published on Independent Experts?

A

The RICS Guidance Note on Independent Expert Determination, 2016.

22
Q

What Document Has the RICS Published on Surveyors Acting as Expert Witnesses? And what is important to consider when acting in such a way?

A

RICS Practice Statement (Mandatory) Surveyors Acting as Expert Witnesses (2014)

The primary duty of care is to the Court or other dispute resolution panel, not to the Client, even though the client pays your fee.

Incentive fees are therefore not appropriate for a surveyor acting as an expert witness.

23
Q

What must an Expert Witness Provide Prior to Starting Their Role?

A

A Statement of Truth and confirmation that they will act impartially and objectively.

24
Q

What is Hot-Tubbing in the context of Dispute Resolution?

A

When Expert Witnesses are sworn in alongside each other and able to ask each other questions.

25
Q

What Does it Mean for a Surveyor to Act as an Advocate?

A

It means that they are representing their client at a dispute resolution hearing or court hearing. Here they have a duty solely to the client, but are obliged to ensure that the integrity of the court and judicial process is respected.

26
Q

What are the Key Themes of the RICS Guidance Note, Conflicts of Interest for Members Acting as Dispute Resolvers (2017)

A
  1. Integrity and Impartiality
27
Q

What is a conflict?

A

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

28
Q

When do disputes arise in your role?

A
  • Negotiating fees
  • Decisions on strategy
  • Assessing value
  • Assessing risks
29
Q

What can you do if negotiations break down?

A

-Re-schedule a further meeting – gives parties time to reassess and think
-Avoids all parties becoming embroiled in heated discussion or argument

30
Q

What is a conflict of interest?

A

A conflict of interest is when a member or firm’s independence and impartiality is threatened due to the existence of a conflict between two clients

31
Q

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

A

RICS Global Professional Statement on Conflicts of Interest (2017):

-Sets out an obligation for members and firms to ‘act with integrity and avoid conflicts of interest and any actions or situations that are inconsistent with its’ professional obligations’

32
Q

Give examples of ways that conflicts can be avoided.

A

Manage the conflict of interest – dependent on the nature of the conflict
Party Conflict – either proceed with ‘informed consent’ from the client if legally possible or reject the instruction of one client
Own Interest Conflict – remove yourself from the instruction or service if possible and pass onto one of your colleagues or reject the instruction
Confidential Information Conflict – set up confidential information barriers and proceed with the instruction assuming the client has granted informed consent or reject the instruction

33
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

34
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
35
Q

How can good record keeping avoid conflict?

A
  • Can be referred back to in the event of conflict removing any ambiguity in facts and actions discussed
36
Q

How do reporting and proactivity reduce conflict?

A
  • Maintains awareness of all parties involved so if there are any issues they can be raised early
  • Proactivity helps to address potential issues quickly and before they become worse
37
Q

What are the three pillars of dispute resolution?

A
  1. Negotiation
    - process of working out an agreement by direct communication. It is voluntary and non-binding
    - e.g negotiating contract terms
  2. 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
  3. 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
38
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.

39
Q

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

A
  • Cheaper
  • Quicker
  • More confidential
40
Q

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

A
  • Check with our internal legal and compliance team
  • Send a conflict of interest email check around to the rest of the business
41
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 o
42
Q

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

A

RICS Global Professional Statement on Conflicts of Interest (2017):

  • Sets out an obligation for members and firms to ‘act with integrity and avoid conflicts of interest and any actions or situations that are inconsistent with its’ professional obligations’
43
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’

44
Q

When might the Lands Tribunal be involved in a dispute?

A

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

45
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
46
Q

Which dispute resolution procedures lead to a binding decision?

A

Arbitration – the decision the arbitrator makes is legally binding

47
Q
A

Mandatory and Technical Competencies for APC (19 decks)

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