Conflict Avoidance, Management and Dispute Resolution Procedures Flashcards
What is a conflict?
Something that is incompatible or at variance
When do disputes arise in your role?
Disputes arise regarding payment of service charges, responsibility for repair, neighbour disputes.
What can you do if negotiations break down?
Refer to an ADR provider.
What is a conflict of interest?
Where a surveyor acts for clients who have competing interests, or where a surveyor’s personal interest conflicts with that/those of their client.
What do the RICS Rules of Conduct say about avoiding conflicts of interest?
Be open and transparent with clients where they could perceive a conflict of interest. Withdraw from the instruction if you cannot act impartially.
Give examples of ways that conflict can be avoided. Why is good management important?
essential
component of professionalism
What are the benefits of clear contract documentation?
Sets out the terms clearly and helps avoid disputes further down the line.
What is partnering or alliancing?
They both promote collaboration but differ in their contractual structures. Partnering typically involves a less formal agreement aimed at improving relationships between parties. Alliance contracting is a formal arrangement with shared risks and rewards, often resulting in a legally binding contract.
Why is good project or instruction management important?
How can good client management reduce conflict?
A good understanding of the client’s objectives and the client’s approach
to risk will assist in identifying how risks and issues are to be dealt with within the
contract documentation and throughout the project, and also build sufficient rapport to avoid a situation where the client incorrectly believes that the surveyor is simply in control of all aspects of the project.
Give examples of good payment practices.
Once payment provisions have been agreed, the valuation should be carried out and payments made promptly.
How can good record keeping avoid conflict?
How do reporting and proactivity reduce conflict?
The regular monitoring of cost, progress and quality is important for the success of any project - minutes of meetings, progress
reports, photos and management of any issues that are causing delay.
What are the three pillars of dispute resolution?
Negotiation
Mediation
Adjudication
Who introduced the three pillars of dispute resolution?
Professor Green of Boston University
Give examples of each of the three pillars of dispute resolution.
Negotiation - agreed between the parties themselves.
Mediation - an independent third party helps the parties to reach agreement.
Adjudication - the final outcome is
determined by a third party who imposes a
binding decision on the parties.
How do mediation and conciliation differ globally?
A mediator facilitates conversation between the parties . A conciliator facilitates negotiation and also offers solutions.
Why is it important to be aware of how mediation and conciliation differ globally?
Because in different countries, the laws governing conciliation and mediation can be different.
What is Alternative Dispute Resolution (ADR)?
Methods of resolving disputes other than litigation, such as adjudication and mediation.
Why might you prefer to pursue ADR rather than litigation through the Courts?
ADR is usually quicker and cheaper, and it can often preserve relationships between the parties.
Tell me about a conflict of interest check you have carried out. What would you do if you identified a perceived/actual conflict of interest?
If I identified a potential conflict of interest, I would pause to consider my position and whether I needed to withdraw from the instruction. If I felt sure that proceeding would not prevent me from providing
competent and diligent advice to those that may be affected and was in the interests of all of those affected, I would notify the affected parties and seek their informed consent in writing for me to proceed. I would consider whether it was necessary to put in place any sort of information barrier and I would record everything in writing including any measures taken to avoid CoIs arising.
Can you tell me about any RICS guidance relating to conflicts of interest?
RICS Professional Standard Conflict of Interest, 1st Edition March 2017, effective 1 January 2018
What is the practice of dual agency/double dipping?
Acting for multiple parties, e.g. in agency work, acting for the buyer and the seller.
Can you tell me about any recent RICS guidance relating to dual agency/double dipping?
RICS Professional Standard - Conflicts of interest – UK
commercial property market
investment agency, effective 1 January 2018.
What is the difference between an arbitrator and an independent expert?
An arbitrator receives written representations from both parties and makes a legally binding award. An independent expert provides provides their expert opinion to determine the matter.
Unlike an arbitrator, an independent expert’s determination is not legally binding.
Can you tell me about any other types of ADR?
Mediation
Arbitration
Expert determination
Adjudication
Can you tell me about mediation/conciliation/adjudication?
In Mediation, the parties agree on an independent, third-party to facilitate discussions between them, with the goal
of reaching a settlement.
Adjudication applies usually to building contracts and professional
appointments. Either party may request the appointment of an adjudicator to be made within seven days of serving a Notice of Dispute, and the adjudicator has 28 days from issue of the Referral within which
to issue a decision.
What is the Technology & Construction Court and what is its role? If you work with contracts, explain how dispute resolution works in a contract you have worked with.
The TCC is a specialist court that deals primarily with litigation of disputes arising in the field of technology and construction, and also procurement claims. It has specialist judges.
Explain the role of the Civil Procedure Rules (CPRs).
They are a set of rules designed to improve access to justice by making legal proceedings cheaper, quicker, and easier to understand for non-lawyers. As a consequence of this, many former, older legal terms were replaced with ‘plain English’ equivalents, such as “claimant” for “plaintiff” and “witness summons” for “subpoena”. Apply to all cases commenced after 26 April 1999.
What does CPR Practice Direction 35 relate to?
It deals with experts and assessors
What changes were made by the Civil Procedure (Amendment) Rules 2023?
Changes some of the terms used to make it more accessible to people without legal knowledge.
What governs dispute resolution during insolvency or bankruptcy proceedings?
What is a Dispute Review or Recommendation Board (DRB)?
A board of impartial professionals formed at the beginning of a project to follow construction progress, encourage dispute avoidance, and assist in the resolution of disputes for the duration of the project.
How does the Dispute Review Board process work?
It involves real-time discussion of the dispute with highly qualified people who know the particular project from day one and can provide recommendations on how to resolve disputes.
What is a Dispute Adjudication Board (DAB)?
An independent body comprising an odd number of members (usually 3) designed to help resolve disputes arising during the implementation of a project.
How does a Dispute Adjudication Board work?
The DAB procedure is a method of primary dispute resolution. Disputes should be referred to the board promptly as soon as
job level negotiations have reached an impasse.
What are the relevant timescales for adjudication by DRB and DAB?
Within 28 days
DAB
Which Act governs adjudication?
Housing Grants, Construction and Regeneration Act 1996
What is the basic principle of adjudication?
To provide a mechanism for individuals and businesses to resolve their disagreements in a fair and impartial manner.
What claims is adjudication appropriate for?
Building contract claims
What is the aim of adjudication?
To resolve disputes.
Explain the various adjudication services provided by RICS.
Homeowner Adjudication - for resolving disputes between homeowners and contractors.
Construction Adjudication - for complex disputes in the construction industry.
Low Value Adjudication - for smaller disputes where the claim is for less than £100,000 and does not involve multiple issues.
Summary Adjudication - for resolving straightforward disputes where the claim is below £20,000.
Explain the impact of the Housing Grants Construction and Regeneration Act 1996 (Construction Act) on dispute resolution and construction contracts.
What timeframe is relevant under this?
Explain what the role of the RICS Low Value Dispute Adjudication service is.
Deals with smaller disputes where the claim is for less than £100,000 and does not involve multiple issues.
What level of claim can the RICS Low Value Dispute Adjudication service be used for? What makes this process cost effective?
Claims of less than £100,000.
RICS charges an administration fee of £425.00 inclusive of VAT.
How does homeowner adjudication work under the Construction Act?
It is a “fast track” binding method of dispute resolution.
The party referring the dispute to Adjudication issues a written ‘Notice of Adjudication’
The Adjudicator must be appointed within seven days of issuing the Notice of Adjudication. The parties can agree on an individual to act as the Adjudicator or, if agreement cannot be reached, the party who referred the dispute to Adjudication may make an application to an Adjudicator Nominating Body (“ANB”) (such as RICS). Cost if usually £300 to £500 plus VAT.
The Adjudicator must be appointed within seven days of issuing the Notice of Adjudication.
Within seven days of issuing the Notice of Adjudication, the Referring Party must issue its ‘Referral Notice’ (i.e., claim), to both the other party and the Adjudicator.
The Adjudicator issues a decision within 28 days of the Referral Notice.
Can you tell me about PACT in relation to lease renewals?
What is the role of RICS in dispute resolution? What RICS guidance are you aware of relating to dispute resolution ADR or roles in dispute resolution?
The RICS Dispute Resolution Service (DRS) provides impartial, professional solutions for resolving disputes in the built environment.
Tell me about your role if you were acting as an expert witness/advocate.
What is the difference between an expert witness and an expert advocate?
How does your duty of care differ in the expert witness and expert advocate roles?
What tribunals are you aware of?
First Tier Tribunal
Upper Tribunal
Employment Tribunals
When might the Lands Tribunal be involved in a dispute?
The Lands Chamber decides all appeals against decisions of the First-tier Tribunal (Property Chamber) in England and Wales, the Residential Property Tribunal in Wales, and the Leasehold Valuation Tribunal in Wales. These appeals cover cases about:
Leasehold enfranchisement including disputes about the price to be paid by leaseholders who want to acquire a new lease or the freehold of their house or block of flats;
Residential property obligations including rents payable by tenants under residential tenancies, service charges payable by leaseholders for repairs, insurance or other services provided by their landlord, the right for leaseholders to manage their own building or obtain the appointment of a manager, and appeals against determination that a tenant has committed a breach of covenant;
Housing standards including appeals against housing improvement notices served by local housing authorities, and financial penalties or rent repayment orders imposed for breaches of the law;
Land registration, including boundary disputes, adverse possession and property fraud;
Mobile homes, including appeals about pitch fees, utility costs, and park rules affecting homes on regulated sites
Agricultural land, including succession to agricultural tenancies.
What are the differences between conflict avoidance and dispute resolution?
Conflict avoidance involves carefully and properly planning and executing the strategy for a project as disputes often arise from ambiguity or an unclear definition of risk.
Dispute resolution is about recognising when a dispute has arisen, and appreciating the escalation of that dispute, and understanding the range of techniques that might be available to resolve the dispute.
Which dispute resolution procedures lead to a binding decision?
Arbitration
Adjudication
What is a Scott Schedule and when would one be used?
A Scott Schedule is a document used in the civil litigation process in the UK to itemize and allocate losses and expenses between two parties. It is also known as a ‘Schedule of Loss’.
Explain the RICS conflict avoidance pledge to me.
It is a voluntary commitment by organisations to proactively avoid and manage disputes by using early intervention procedures.
What RICS guidance relates to conflicts of interest for dispute resolvers?
RICS Professional Standard ‘Conflicts of interest for members
acting as dispute resolvers’, effective 1 February 2021
Explain the Thomas Kilman model to me.
The Thomas-Kilmann Conflict Mode Instrument (TKI) is a widely recognized framework designed to measure an individual’s response to conflict situations. Developed by psychologists Kenneth Thomas and Ralph Kilmann in the early 1970s, the model identifies five primary ‘modes’ of dealing with conflict: competing, collaborating, compromising, avoiding, and accommodating
What are some conflict avoidance processes?
Good management
Clear contract documentation
Partnering and alliancing
Good project management
Good client management
Good constructor management
Good payment practice
Record keeping
Regular reporting and proactivity
