Conflict avoidance, management and dispute resolution procedures Flashcards
What is a conflict?
A disagreement or dispute between parties, often arising from differing objectives, interests, or expectations.
When do disputes arise in your role?
Lease negotiations (e.g., rent reviews, lease renewals), payment disputes (e.g., unpaid fees), conflicts of interest (e.g., acting for multiple parties in the same transaction).
What can you do if negotiations break down?
Attempt Alternative Dispute Resolution (ADR) such as mediation, arbitration, or adjudication. Escalate to litigation if ADR is unsuccessful.
What is a conflict of interest?
A situation where a surveyor’s duty to act impartially is compromised by personal or financial relationships.
What do the RICS Rules of Conduct say about avoiding conflicts of interest?
Members must identify, disclose, and manage conflicts. Obtain informed consent or decline the instruction if conflicts cannot be managed.
Give examples of ways that conflict can be avoided.
Clear communication and well-defined contract terms, regular progress reporting to clients, independent third-party mediation when required.
Why is good management important?
Ensures projects run smoothly and disputes are minimised. Maintains client relationships and reputation.
What are the benefits of clear contract documentation?
Reduces misinterpretation of obligations. Ensures clear dispute resolution mechanisms are in place.
What is partnering or alliancing?
A collaborative contracting approach to reduce disputes by fostering trust, transparency, and shared objectives.
Why is good project or instruction management important?
Prevents cost overruns, delays, and disputes.
How can good client management reduce conflict?
Setting clear expectations at the outset, maintaining regular communication.
Give examples of good payment practices.
Agreeing payment terms upfront, issuing clear invoices and reminders.
How can good record keeping avoid conflict?
Provides a clear audit trail. Helps resolve disputes quickly with documented evidence.
How do reporting and proactivity reduce conflict?
Early identification of potential issues prevents escalation. Regular updates keep clients informed and engaged.
What are the three pillars of dispute resolution?
- Conflict Avoidance 2. Dispute Management 3. Dispute Resolution
Who introduced these terms?
Introduced by RICS, ICE, and CIArb.
Give examples of conflict avoidance, dispute management and dispute resolution.
Conflict Avoidance: Clear contract terms, proactive management. Dispute Management: Negotiation, mediation. Dispute Resolution: Arbitration, adjudication, litigation.
How do mediation and conciliation differ globally?
Mediation is facilitative (guides parties to a resolution). Conciliation is evaluative (actively suggests solutions).
Why is this important to be aware of?
Legal frameworks vary globally, so understanding jurisdictional differences is crucial.
What is Alternative Dispute Resolution (ADR)?
A set of methods for resolving disputes outside of court, including mediation, arbitration, and adjudication.
Why might you prefer to pursue ADR rather than litigation through the Courts?
Cost-effective and faster than litigation. Confidential and less adversarial.
Tell me about a conflict of interest check you have carried out.
Before undertaking a valuation, I checked our conflict register to ensure no prior client relationship affected impartiality.
What would you do if you identified a perceived/actual conflict of interest?
Disclose the conflict to all parties. Seek informed consent or decline the instruction.
Can you tell me about any RICS guidance relating to conflicts of interest?
RICS Professional Statement: Conflicts of Interest (2017).
What is the practice of dual agency/double dipping?
Acting for both buyer and seller in the same transaction, leading to potential conflicts.
Can you tell me about any recent RICS guidance relating to dual agency/double dipping?
The 2017 RICS Conflicts of Interest Statement prohibits dual agency in certain circumstances.
What is the difference between an arbitrator and an independent expert?
Arbitrator: Legally binding decision-maker based on evidence and law. Independent Expert: Provides a valuation-based opinion, which may be binding if agreed by parties.
Can you tell me about any other types of ADR?
Early Neutral Evaluation (ENE), Expert Determination.
Can you tell me about mediation/conciliation/adjudication?
Mediation: A facilitator helps parties reach a voluntary agreement. Conciliation: A neutral party suggests solutions. Adjudication: A legally binding decision, often used in construction disputes.
What is the Technology & Construction Court and what is its role?
A specialist UK court for construction and engineering disputes.
If you work with contracts, explain how dispute resolution works in a contract you have worked with.
In lease negotiations, disputes often arise over rent reviews or service charges. A contract I worked with included a dispute resolution clause specifying: Negotiation – Initial attempt to resolve informally. Mediation – If unresolved, parties engage a neutral mediator. Expert Determination – If the dispute is valuation-based, an independent RICS expert provides a binding decision. Arbitration or Court – If unresolved, arbitration or litigation under the Landlord and Tenant Act 1954 may be required.
Explain the role of the Civil Procedure Rules (CPRs).
The Civil Procedure Rules (CPRs) govern how civil cases are conducted in England and Wales.
What does CPR Practice Direction 35 relate to?
CPR Practice Direction 35 governs the use of expert witnesses in court cases.
What changes were made by the Civil Procedure (Amendment) Rules 2023?
Digitisation of proceedings – Expanded use of electronic filing and virtual hearings. Greater emphasis on ADR – Courts can now direct parties to mediation before trial. Streamlined disclosure rules – Making document sharing more efficient. Enhanced cost control measures – Managing litigation expenses more effectively.
What governs dispute resolution during insolvency or bankruptcy proceedings?
Insolvency Act 1986.
What is a Dispute Review or Recommendation Board (DRB)?
A panel that advises on potential disputes during a project.
How does this process work?
I. Pre-action negotiation – Parties attempt to settle informally. II. Alternative Dispute Resolution (ADR) – Mediation, expert determination, or adjudication may be used. III. Formal dispute resolution – If unresolved, arbitration or court proceedings under Civil Procedure Rules (CPR) commence. IV. Decision and enforcement – The outcome is either binding or non-binding, depending on the chosen method.
What is a Dispute Adjudication Board (DAB)? How do these work?
A standing panel of adjudicators used in large projects to resolve disputes quickly.
What are the relevant timescales for adjudication?
Under the Construction Act 1996, adjudication must be completed within 28 days from the date of referral. The period may be extended by up to 14 days with the referring party’s consent.
Which Act governs adjudication?
Housing Grants, Construction and Regeneration Act 1996.
What is the basic principle of adjudication?
Quick, cost-effective resolution of construction disputes.
What claims is adjudication appropriate for?
Construction contract disputes (e.g., payment disputes, delays, defects), disagreements over contract terms, valuation disputes in property and construction projects.
What is the aim of adjudication?
To provide binding, interim decisions to prevent project delays.
Explain the various adjudication services provided by RICS.
RICS Adjudication Service – Provides panels for resolving disputes. Low-Value Dispute Adjudication (LVDA) – For claims under £100,000.
Explain the impact of the Housing Grants Construction and Regeneration Act 1996 (Construction Act) on dispute resolution and construction contracts.
Introduced mandatory adjudication clauses in construction contracts.
What timeframe is relevant under this?
A Notice of Adjudication is served. The adjudicator is appointed within 7 days. The decision must be issued within 28 days.
Explain what the role of the RICS Low Value Dispute Adjudication service is.
A cost-effective process for disputes under £100,000.
What level of claim can this service be used for?
Claims under £100,000.
What makes this process cost effective?
Fixed fees and streamlined procedures.
How does homeowner adjudication work under the Construction Act?
Homeowners can use adjudication for construction disputes, but only if the contract expressly allows it. Standard adjudication rights under the Construction Act apply only to business-to-business contracts. Many residential disputes instead rely on mediation, arbitration, or court action.
Can you tell me about PACT in relation to lease renewals?
Professional Arbitration on Court Terms (PACT) – Allows parties to resolve lease renewal disputes without going to court.
What is the role of RICS in dispute resolution?
Provides qualified dispute resolvers (e.g., arbitrators, mediators).
What RICS guidance are you aware of relating to dispute resolution, ADR or roles in dispute resolution?
RICS Dispute Resolution Professional Statements.
Tell me about your role if you were acting as an expert witness/advocate.
🔹 Expert Witness: Provides independent, unbiased opinion based on their expertise. Owes their duty to the court or tribunal, not the client. Must comply with CPR Practice Direction 35. 🔹 Advocate: Represents one party’s interests in a dispute. Presents legal arguments and cross-examines evidence. Their duty is to their client, subject to professional ethics.
What is the difference between the two?
An expert witness provides independent, factual analysis to assist a tribunal, while an advocate represents a client’s position and argues their case.
How does your duty of care differ in the two roles?
🔹 Expert Witness: Primary duty is to the court/tribunal, not the client. Must remain impartial, factual, and unbiased. 🔹 Advocate: Duty is to the client (while following ethical guidelines). Can present arguments in favour of their client.
What tribunals are you aware of?
Lands Tribunal (Upper Tribunal – Lands Chamber) – Property disputes, leasehold enfranchisement, land valuation appeals. First-tier Tribunal (Property Chamber) – Residential property disputes, service charges, leasehold issues. Construction Industry Adjudication Panels – Resolving disputes under the Construction Act 1996. Rent Tribunals – Reviewing regulated rents under the Rent Act 1977.
When might the Lands Tribunal be involved in a dispute?
The Lands Tribunal (Upper Tribunal – Lands Chamber) handles: Leasehold enfranchisement appeals, disputes over compulsory purchase compensation, valuation disputes under RICS Red Book standards, modification of restrictive covenants under the Law of Property Act 1925.
What are the differences between conflict avoidance and dispute resolution?
🔹 Conflict Avoidance: Proactive approach to prevent disputes (e.g., clear contract drafting, early negotiations). Encourages mediation, negotiation, and risk management. 🔹 Dispute Resolution: Reactive approach once a conflict has escalated. Uses adjudication, arbitration, or litigation to settle disputes.
Which dispute resolution procedures lead to a binding decision?
The following methods result in a binding outcome: Adjudication – Binding unless challenged in court. Arbitration – Binding and enforceable under the Arbitration Act 1996. Litigation (Court Judgment) – Fully binding under CPR rules. Expert Determination – Binding if agreed in contract.
What is a Scott Schedule and when would one be used?
A document summarising disputed items in a claim, used in construction adjudications.
Explain the RICS conflict avoidance pledge to me.
A commitment to proactive conflict resolution before disputes escalate.
What RICS guidance relates to conflicts of interest for dispute resolvers?
The RICS Professional Statement on Conflicts of Interest (2017) applies to dispute resolvers, ensuring: Impartiality and transparency in appointments, full disclosure of conflicts before accepting instructions, adherence to RICS Ethical Standards.
When was this last updated and what changes were made?
Last updated: 2017. 🔹 Key changes: Mandatory disclosure of conflicts of interest, strengthened guidance on dual agency and investment conflicts, new rules for appointing dispute resolvers to ensure impartiality.
Explain the Thomas Kilman model to me.
A conflict resolution model identifying five negotiation styles: 1. Competing 2. Collaborating 3. Compromising 4. Avoiding 5. Accommodating.
Name some different forms of alternative dispute resolution.
Mediation, Conciliation, Negotiation.
Name some formal methods of dispute resolution.
Arbitration, Conciliation, Negotiation.
What would your considerations be prior to selecting a form of dispute resolution?
Cost of dispute resolution in proportion to claim being sought, timescale involved, impact on business relationships and reputation.
What is conciliation?
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. The conciliators are not able to make binding decisions. The conciliators’ role is to act primarily as the messenger and to encourage diplomacy.
What is mediation?
Relies on bringing in an impartial third party to mediate and guide a decision. Tries to bring the parties together to facilitate a decision as opposed to acting as a messenger. It encourages the coming together of parties.
What is dispute resolution?
Actions and processes taken to resolve contractual disagreements between parties.
What is negotiation?
Negotiation is where the parties reach an agreement through an informal private or facilitated discussion.
What is your most successful negotiation?
94 Mostyn Street.
What could indicate the success of a negotiation on a final account?
Both parties are satisfied with the outcome and feel that a fair and reasonable compromise was reached.
What is adjudication?
Adjudication is a statutory form of dispute resolution procedure available in the UK. Based on an independent third party who considers all the evidence and makes a binding decision. A decision must be made within 28 days.
What enforces the requirements for a building contract to contain provisions for adjudication?
The Housing Grants, Construction and Regeneration Act 1996.
What contracts does adjudication apply to?
It applies to all construction contracts entered into after the act commenced within England, Scotland, and Wales.
What if a building contract does not contain provisions for adjudication?
Parties still have the statutory right to adjudication assuming the contract qualifies.
Please explain your understanding of the arbitration process.
Arbitration is a procedure for the resolution of disputes which is under the control of the parties. A binding agreement must be reached to escalate the matter to arbitration.
What does the act apply to?
It applies to all construction contracts entered into after the act commenced within England, Scotland, and Wales.
What is the arbitration process?
Arbitration is a procedure for the resolution of disputes which is under the control of the parties. A binding agreement must be reached to escalate the matter to arbitration.
What are the key features of arbitration?
Arbitration is governed by the arbitration act 1996, both parties must agree to enter arbitration proceedings, and it is a private process.
What are the key features of litigation?
Litigation differs in that proceedings are conducted in court, it is a public process, and it incurs high costs.
