Conflict avoidance, management and dispute resolution procedures Flashcards
What is the importance of conflict avoidance?
- preserve professional relationships
- protect client interests
- maintain professional reputations
- promote ethic conduct in line with RoC
- improve client outcomes
What is the guidance on CoI?
RICS Conflicts of Interest professional standard, 1st edition (2017).
What is the salient information of RICS Conflicts of Interest professional standard, 1st edition (2017).
- Mandatory statement
- Must not advise or represent a client where doing so would involve a conflict of interest
- Information on how to handle and avoid conflicts
Why do conflicts arise?
Du to failure to comply with contractual obligations that may occur due to differing interpretations of the contract itself.
What is the 3 steps in conflict to follow?
- Conflict avoidance
- Conflict management
- Conflict resolution
How can conflict avoidance be achieved?
- Careful drafting of contract/lease
- Adopt proactive conflict avoidance risk analysis – understand what could go wrong.
- Manage all parties expectations – understand their objective
- Implement ‘early warning systems’
- Negotiate contractual obligations carefully and transparently to avoid later conflict.
- Keep good records.
What are the 3 main processes available to resolve disputes?
- Negotiation – by the parties themselves.
- Mediation or conciliation – third party intervention, it assists parties to resolve difficulties.
- Adjudicative process – outcome determined by third party, such as litigation or arbitration.
What are the advantages of Alternative Dispute Resolution (ADR) processes?
- Speed – less time than court proceedings
- Informality – outside court
- Greater opportunity to negotiate
- Cost – less money spent on fees for litigation
- Quality of decision – outcome can be made by surveyor rather than judge
- Confidentiality
Name forms of ADR?
- Mediation
- Arbitration
- Independent Expert Determination
What is Mediation?
- Use of neutral mediator who facilitates discussion between two parties to explore if solution can be found.
- Confidential and informal process.
- Usually conducted without prejudice basis
- Mediator has no decision-making authority.
- RICS Guidance Note on Mediation (2014)
What is PACT?
Professional Arbitration on Court Terms. Form of arbitration used for lease renewal disputes.
What does it mean when a surveyor is ‘Acting as an expert witness’
- When surveyor provides evidence to judicial or quasi-judicial body it is an expert witness.
- Their duty of care is the court, not the client (although client pays the fee)
- A surveyor should only accept role of expert witness if they have knowledge, experience, qualifications, training and no conflicts.
- Expert provides ‘Statement of Truth’ to confirm they will act impartially, objectively, unbiased.
- Incentive fees are not allowed
- Expert witnesses are not immune from civil action, can be sued for negligence.
- RICS Practice Statement and Guidance Note ‘Surveyors acting as expert witnesses’ 4th edn, 2014 (amended 2023).
- ‘Hot tubbing’ – where experts consider cases collaboratively.
What does it mean when a surveyor is ‘Acting as an advocate’.
- A surveyor acting for a client as an advocate, represents their client at a judicial hearing/tribunal.
- Duty solely to the instructing client
- They must act in a way to maintain the integrity of judicial process.
- RICS Professional Statement ‘Surveyors Acting as Advocates’ (2017)
- RICS Practice Statement and Guidance Note ‘Surveyors Acting as Advocates’ (2008) Scotland.
What is am ADR?
ADR = dispute resolution processes and techniques that fall outside of the scope of court litigation
How is a conflict-of-interest undertaken? What if your company didn’t have salesforce?
- Identify parties and property
- First think about involvement
- Then run internal checks against the property or client (past, current or future instructions, relationships etc.)
If no Salesforce – email heads of department on both, speak to admins within the teams who have record of all information to cross check, check own emails and files.
