Conflict Avoidance, Management and Dispute Resolution Procedures (L1)

Question 1

What does the RICS recommend in terms of Conflict Avoidance?
What are the general principles?

Give examples of ways that conflict can be avoided?

Answer 1

Conflicts should be avoided.
Conflicts should be managed.
Conflict resolution methods could be used if a conflict cant be agreed.

Clear and concise contract documentation. Partnerships based approach.

Question 2

Conflict avoidance what do you understand

Answer 2

Conflict Avoidance:
o Requires clear, concise and careful drafting of the contract or lease and associated documentation.
o Proactive conflict avoidance risk analysis – involves understanding what could go wrong or how misinterpretation may arise
o Managing all parties expectations requires understanding their objectives and clearly communicating these as well as implementing ‘early warning systems’ including the service of appropriate notices
o Negotiating contractual obligations carefully and transparently will help to avoid later conflict or a least enable their efficient resolution
o Keeping good records with a sufficient level of detail can help resolve conflicts before they escalate.

Question 3

Why is good management important regarding Conflicts? How does reporting and proactivity reduce conflict?

Answer 3

Failure to avoid conflicts will incur cost in their subsequent management and resolution. Cost effective, build trust, and avoid potential delays

Early warning signs

Question 4

How is a good record keeping crucial to avoiding conflict?

Answer 4

You can pick up on early warning signs and keep a paper trail for auditing purposes.

Understand lessons learnt.

Help resolve conflicts before they escalate.

Question 5

What are the three distinct ‘pillars’ of dispute resolution?

Answer 5

1. Negotiation = the problem-solving efforts of the parties themselves to come to an agreement.
2. Mediation = a third party intervention which does not bind the parties to a decision but facilities discussions between the parties. This has to be a surveyor whose trained in mediation.
3. Adjudicative process = an outcome is determined by a third party, such as independent expert

Question 6

Who introduced the three pillars of Dispute resolution terms and can you give an example of each?

Answer 6

Negotiation - fact finding or early neutral evaluation.
Mediation - Conciliation is a way to resolve a legal dispute without going to trial. A neutral third party, often a judge, may provide suggestions and develop proposals to help you and the other party come to an agreement.
Adjudication - Litigation, Arbitration or Expert determination

Question 7

What is Alternative Dispute Resolution? (ADR)

Answer 7

Dispute processes and techniques to resolve a conflict which fall outside of the court litigation.

Question 8

What are the benefits of ADR?

Answer 8

Typically cheaper and quicker that court proceedings (litigation)
It is confidential rather than court proceedings
Specialist experts are involved rather than lay judgers

Question 9

What is Arbitration? Who governs an Arbitration?

Answer 9

An arbitrator is appointed and the parties are bound by the decision that they make. They will have specialist knowledge in the area. THEY ACT ON EVIDENCE PROVIDED

The Arbitration Act 1996.

Question 10

What is the benefits of arbitration

Answer 10

It is private - there is no public record of any proceedings, although not necessarily confidential.

Speed, although this depends very much on the manner in which the arbitrator conducts the arbitration.

The parties can agree on an arbitrator with relevant expertise in the matter. The arbitrators award can be enforced as a judgement of the court.

Question 11

On what grounds can you appeal an Arbitrator?

Answer 11

Arbitration decides a dispute acting in accordance with statute (Arbitration Act 1996). Limited right to appeal to the High Court on a point of law.

Question 12

Who does an Arbitrator owe a duty of care to?

Answer 12

arbitrators owe a general duty to act fairly and impartially as between the parties

Question 13

What is Independent Expert Determination? Who governs an Independent Expert?

Answer 13

They are appointed by the RICS to investigate the dispute and can receive evidence. They have expert knowledge on the subject matter. Parties are bound by the decision. DO NOT JUST CONSIDER THE EVIDENCE PROVIDED.

As with arbitration, expert determination is governed by the agreement to appoint them.

Expert determination is particularly suited to valuation disputes or technical issues which can be determined by a technical expert, rather than detailed legal issues.

Question 14

Can you appeal an Independent Expert?

Answer 14

An independent third party will act as an expert rather than judge or arbitrator, and is appointed by the parties to decide the dispute privately. There is no right of appeal and the expert’s determination is final and binding on the parties

Question 15

Does an Independent Expert owe a duty of care to?

Answer 15

Experts always owe a duty to exercise reasonable skill and care to those instructing them

Question 16

Pro’s and con’s of using a Mediator?

Answer 16

Mediation is a dispute resolution method where a neutral third party, the Mediator, assists parties resolve their dispute amicably. The Mediator helps disputing parties acquire a better understanding of each other’s needs and interests so they can negotiate a settlement agreement which accommodates those needs and interest to the greatest possible extent.

Mediation is a consensual process off dispute resolution in which a third-party mediator, appointed by the parties to the dispute, assists in the negotiated resolution of the dispute.

Advantages:
* It is an informal process. and confidential

Disadvantages:
* If the parties do not agree, there is no outcome, and the mediation has failed.
* The mediator has no power to order the parties to do or to refrain from doing anything.
* Information may be ‘given away’ in the process.
* The process is non-binding.

Question 17

What is an expert witness?

Answer 17

When a surveyor acts for either party and submits their evidence to an independent expert, arbitrator or the court.

Question 18

Who does an expert witness owe a duty of care to?

Answer 18

The court

I would refer to the Practice Statement and Guidance for Surveyors acting as expert witness. Your primary duty as an expert witness is not to a client but to the tribunal where your expert witness
report and evidence given:

Question 19

What are the different forms of dispute resolution?

Answer 19

Dispute resolution is the resolution of a dispute between two or more parties. Dispute resolution can be complicated by the method by which the dispute is resolved, since the various forms of dispute resolution where costs, confidentiality, access and speed need to be considered. Refer to three pillars.

Question 20

Can you tell us of a potential conflict of interest you have encountered and what you’ve done? How would you go about identifying and proceeding with a COI?

Answer 20

I would consider the facts, identify the RICS standards and refer to them. Use my professional judgement before proceeding.

Conflict Management - information barrier
Informed Consent in writing open and transparent where there is a potential conflict.

Acting in both client’s best interest in providing a good-quality and diligent service.

Question 21

Can you talk me through the main points of the RICS Conflicts of Interest Professional Standard

Answer 21

Structure of the Conflict of Interest Professional Standard:
 Overview of what a conflict of interest is
 General commentary sets out principles and how the members should apply the professional standard Supporting commentary how members can act to meet the professional standard
 Appendix A – Standard form for obtaining Informed Consent

Question 22

What are common causes of disputes within your area of practice?
o What would be the early warning signs?
o How would you use patterning techniques to avoid conflict.

Answer 22

Delays
Costs
Valuations
Quality

Question 23

What are the key theories of negotiation?

Answer 23

In negotiation, the three key elements are often referred to as “The Three P’s”: People, Problem, and Process.

People focus on the individuals involved in the negotiation. It encompasses their personalities, emotions, values, perceptions, and communication styles.

Problem: Focusing on the problem allows negotiators to move beyond positions and delve into the underlying interests. It involves exploring potential solutions, alternatives, trade-offs, and creative options to address the fundamental issues at hand.

Process: The process is the framework within which the negotiation takes place. It includes the strategies, tactics, stages, and methods used to negotiate effectively.

Question 24

What is PACT / Court Proceedings?

Answer 24

Professional Arbitration on Court Terms is a joint initiative set up by RICS and the Law Society as a form of alternative dispute resolution (ADR) for lease renewal disputes under the Landlord & Tenant Act 1954

Question 25

What is the possible role of a surveyor as an expert witness?

Answer 25

Must adhere to the rules of the tribunal acting in accordance with the RICS Practice Statement and Guidance Note for Surveyors acting as Expert Witness. Must be independent, unbiased and truthful. e.g. rent review disputes in front of an arbitrator

Question 26

Can you give an example of a nominated body or service available to resolve disputes?

Answer 26

The RICS Dispute resolution Service

Question 27

What is a conflict? how does it differ from a conflict of interest?

Answer 27

A conflict is a situation, in which inacceptable differences in interests, values, expectations and opinions occur in or between individuals or groups.

Examples of COI include financial, personal, commercial, acting on both sides. Conflict avoidance is when you do not accept. Conflict management is when it is accepted, and steps are agreed and put in place to manage the conflict such as an information barrier and written agreement of all parties.

RICS Global Professional Standard on COI states members must not advise or represent a client, where doing so would involve a conflict of interest, other than informed consent has been provided. CPE is an example of ‘Party Conflict’ other examples include ‘Own Interest Conflict or Confidential Information Conflict’

Question 28

What can you do if negotiations breakdown at Clapham Park with your LLP Business Partner?

Answer 28

Negotiation leading to expert determination.

Question 29

What does the ROC say about avoiding conflict of interest?

Answer 29

The Rules of Conduct specify that it is mandatory for all RICS-regulated firms to publish a complaints-handling procedure, which includes an Alternative Dispute Resolution (ADR) mechanism, and they must maintain a complaints log

Question 30

What RICS guidance relates to COI for dispute resolvers? When was this last updated and what changes were made?

Question 31

Explain the RICS conflict avoidance pledge?

Question 32

What is the difference between conflict avoidance and dispute resolution?

Question 33

When might the Lands Tribunal be involved in a dispute? What other tribunals are you aware of?

Question 34

Tell me about your role if you were acting as an expert witness/advocate? What is the difference between the two? How does duty of care differ in the two roles?

Question 35

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

Question 36

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

Question 37

What is the basic principle for adjudication and what claims are it appropriate for?