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Ethics, Conflict Avoidance. > Conflict Avoidance, Management and Dispute Resolution Level 1 > Flashcards

Conflict Avoidance, Management and Dispute Resolution Level 1 Flashcards

1
Q

What is a conflict?

A

A difference in opinion / understanding / thought process.

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2
Q

When do disputes arise in your role?

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3
Q

What can you do if negotiations break down?

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4
Q

What is a conflict of interest?

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5
Q

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

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6
Q

Give examples of ways that conflict can be avoided.

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7
Q

Why is good management important?

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8
Q

What are the benefits of clear contract documentation?

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9
Q

What is partnering or alliancing?

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10
Q

Why is good project or instruction management important?

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11
Q

How can good client management reduce conflict?

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12
Q

Give examples of good payment practices.

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13
Q

How can good record keeping avoid conflict?

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14
Q

How do reporting and proactivity reduce conflict?

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15
Q

What are the three pillars of dispute resolution, who introduced these terms? Give examples of each.

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16
Q

How do mediation and conciliation differ globally, and why is this important to be aware of?

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17
Q

What is Alternative Dispute Resolution (ADR)?

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18
Q

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

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19
Q

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

A
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20
Q

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

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21
Q

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

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22
Q

What is the practice of dual agency/double dipping?

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23
Q

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

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24
Q

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

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25
Q

Can you tell me about any other types of ADR?

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26
Q

Can you tell me about mediation/conciliation/adjudication?

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27
Q

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

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28
Q

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

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29
Q

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

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30
Q

What does CPR Practice Direction 35 relate to?

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31
Q

What governs dispute resolution during insolvency or bankruptcy proceedings?

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32
Q

What is a Dispute Review or Recommendation Board (DRB) and how does the process work?

A
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33
Q

What is a Dispute Adjudication Board (DAB) and how do these work?

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34
Q

What are the relevant timescales for adjudication?

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35
Q

Which Act governs adjudication?

A
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36
Q

What is the basic principle of adjudication?

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37
Q

What claims is adjudication appropriate for?

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38
Q

What is the aim of adjudication?

A
39
Q

Explain the various adjudication services provided by RICS.

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40
Q

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

A
41
Q

What timeframe is relevant under the Housing Grants Construction and Regeneration Act 1996 (Construction Act)?

A
42
Q

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

A
43
Q

What level of claim can the RICS Low Value Dispute Adjudication service be used for?

A
44
Q

What makes the RICS Low Value Dispute Adjudication process cost effective?

A
45
Q

How does homeowner adjudication work under the Construction Act?

A
46
Q

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

A
47
Q

What is the role of RICS in dispute resolution?

A
48
Q

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

A
49
Q

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

A
50
Q

What is the difference between acting as an expert witness or advocate and how does your duty of care differ between the two roles?

A
51
Q

What tribunals are you aware of?

A
52
Q

When might the Lands Tribunal be involved in a dispute?

A
53
Q

What are the differences between conflict avoidance and dispute resolution?

A
54
Q

Which dispute resolution procedures lead to a binding decision?

A
55
Q

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

A
56
Q

Explain the RICS conflict avoidance pledge to me.

A
57
Q

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

A
58
Q

When was the RICS guidance related to conflicts of interest for dispute resolvers last updated and what changes were made?

A
59
Q

Explain the Thomas Kilman model to me.

A
60
Q

Dispute Resolution Procedures

A

N-MEAAL
* Negotiation (ADR)
* Mediation and conciliation (ADR)
* Expert determination (ADR)
* Adjudication (ADR)
* Arbitration
* Litigation
* Dispute boards (ADR)
* ADR (Alternative Dispute Resolution) - alternative to Litigation and Arbitration

61
Q

The 3 main ways of dispute resolution?

A
  1. Negotiation
  2. Mediation
  3. Adjudicative process
62
Q

What are the techniques to avoid conflict?

A

Good management - proactivity managing, planning and the early rising of issues.
Clear contract documentation - ensure contracts are in place, avoid abiguity, identify risk.
Partnering and alliancing - building cooperation, team working, joint problem solving, an emphasis on successful project delivery.
Good project management - proactively managing all aspects of time, money and risk.

63
Q

What are the advantages of ADR?

A
  • Speed
  • Informal - outside court
  • Greater opportunity for negotiation
  • Cost
  • Confidentiality
64
Q

Negotiation…

A

parties involved work out between themselves how to resolve any issues that have arisen.

65
Q

What are the benefits of negotiation?

A
  • In the event of a disagreement, all other dispute resolution procedures are still available.
  • Generally non-binding unless a contract is produced out of the agreement.
  • Cheapest form of dispute resolution.
66
Q

Mediation…

A

use of neutral mediator to facilitiate discussions with no decision making authority. Confidential and informal. Normally ‘without predjudice’.

67
Q

Benefits of Mediation and Conciliation?

A
  • In the even of failure, all other dispute resolution procedures are still available.
  • Generally non-binding but can be binding if a contract is produced out of the agreement.
  • Cheaper than Litigation or Arbitration.
68
Q

Expert determination…

A

Expert appointed by parties (or by RICS Dispute Resolution Service) to investigate. Can use own opinion or evidence to decide. Parties bound by decision.

69
Q

Factors of expert determiniation?

A
  • Decision of expert will be final and it is not possible to appeal the decision.
  • Cheaper than Litigation or Arbitration.
70
Q

Litigation…

A

Procedure governed by the Civil Procedure Rules. It is the most time consuming and expensive form of dispute resolution.

71
Q

What is Alternative Dispute Resolution (ADR)?

A

Refers to processes which are alternative to the traditional binding procedures of litigation and arbitration.

72
Q

Adjudication…

A

uses own knowledge to reach legally binding decision in contractual process. Strict 28-day timescale imposed by legislation. Common for construction payment disputes.

Housing Grants, Construction and Regeneration Act 1996

73
Q

Arbitration…

A

Quasi-judge role in accordance with Arbitration Act 1996. Parties bound by decision. Arbitrators can order court decision and have specialist knowledge. Surveyors can act as arbitrators having passed Chartered Institute of Arbitrator exams.

74
Q

RICS Expert Witness Guidance

A

RICS Practice Statement & Guidance Note
Surveyors acting as expert witnesses - 4th edn, Geb 2023

75
Q

Techniques to avoid conflict?

A
  • Good client management
  • Good constructor management
  • Provision of services
  • Good payment service
  • Record keeping
  • Regular reporting and proactivity
76
Q

Techniques to handle conflict.

A
  • Avoid - always try to come to an understanding first.
  • Learn techniques - recognise when it is going to happen.
  • Stay within expertise.
  • Good management - proactively managing, planning and early raising of issues.
  • Clear contract documentation - ensure contracts are in place, avoid ambiguity, identify risk.
  • Partnering and alliancing - building co-operation, team working, joint problem solving, an emphasis on sucessful project delivery.
  • Good project managment - proactively
77
Q

What is conflict?

A

Where impartiality comes into question?

78
Q

What are Calderbank letters?

A

For rent reviews. An offer in writing setting out the terms to settle the dispute without taking arbitration further. Dual purpose; settle rent review, gain protect on costs. If recipient doesn’t accept, open themselves up to risk of covering other parties costs.

79
Q

What is PACT?

A

Professional Arbitration on Court Terms (PACT), administered by RICS and the Law Society. For lease renewal disputes. Quick, efficient and flexible. Decision is legally binding.

80
Q

What are the three main ways of dispute resolution?

A
  1. Negotiation
  2. Mediation
  3. Adjudicative process
81
Q

What the advantages of ADR?

A
  • Speed
  • Informal - outside court
  • Greater opportunity fo negotiation
  • Confidentiality
82
Q

What ADRs are available?

A
  • Mediation
  • Arbitration
  • Independent Expert Determination
  • Adjudication
  • Early neutural evaluation
83
Q

What is mediation?

A

Use of neutural mediator to facilitate discussions with no decision making authority.
Confidential and informal.
Normally ‘without prejudice’.

84
Q

What is arbitration?

A

Quasi-judge role in accordance with the Arbitration Act 1996.
Parties bound by decision.
Arbitrators can order court decision and have specialist knowledge.
Surveyors can act as arbitrators having passed Chartered Institute or Arbitrator exams.

85
Q

What are Independent Expert Determinations?

A

Expert appointed by parties (or by RICS Dispute Resolution Service) to investigate - expert in technical issues but not law.
Can use own opinion or evidence to decide.
Parties bound by decision.
Cheaper than litigation or arbitration.

86
Q

What is adjudication?

A

Adjudication under Housing Grants, Construction and Regeneration Act 1996 (HGRCA), as amended.
Uses own knowledge to reach legally binding decision in a contractural process.
Strict 28-day timescale imposed by legislation.
Common for construction payment disputes.
Cheaper than litigation or arbitration.

87
Q

What is Early Neutral Evaluation?

A

Independent person, experince in subject, investigates, and gives non-binding opinion.

88
Q

Why is negotiation important?

A

It is the process whereby the parties work out between themselves how to resolve any issues that have arisen.
Power to settle disputes rests with the parties.
Cheapest form of dispute resolution.
In event of failure to agree, all other dispute resolution procedures are available.
Generally non-binding but contract can be produced out of agreement.

89
Q

What is arbitration?

A

Process of bringing dispute in front of third party for resolution - parties hand over their dispute to arbitrator.
Contract must contain written agreement to arbitrate.
Generally cheaper than litigatation but still expensive.

90
Q

What is litigation?

A

Courts have inherent jurisdiction to hear a dispute in respect to just about anything, parties have the right to refer their matter to an appropriate court.
Goverend by Civil Procedure Rules
Most expensive and time consuming form of dispute resolution.

91
Q

RICS Professional Statement: Surveyors Acting as Advocate 2nd Edn - 2017

A
  • Must act in best interests of client
  • Must only act in matters you have experience or knowledge in - must now advise beyond knowledge
  • Must confirm instructions in writing
  • Must not mis-state facts to advcance clients case.
  • Must act in a way to maintain integrity of judicial process.

Ethics, Conflict Avoidance. (10 decks)

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