Conflict avoidance, management and dispute resolution procedures Flashcards
What document is made available by the RICS concerning dispute resolution?
RICS Conflict Avoidance and Dispute Resolution in Construction, 1st Edition 2012 guidance note
What are the minimum levels of service that you as a surveyor should provide when it comes to dispute resolution?
- Identify the risks to the client and assist in the management of those risks
- To manage professional, objectively and consensually the day-to-day or regular conflicts that arise.
- To recognise the escalation of disputes and keeping the client informed
- To recognise when more specialist assistance is needed and advising the client accordingly
Can you broadly outline dispute resolution techniques?
- Negotiation
- Mediation or conciliation
- An adjudicative process
What are the Three Pillars of Dispute Resolution?
1) Negotiation
2) Mediation
3) Adjudication (Litigation, Arbitration, Expert Determination)
What is mediation?
Disputing parties agree on a third party, independent body to facilitate discussion between them. Power to settle rests with parties but mediator will lead the process
What is Expert Determination?
The parties agree by a contract that a third party will make a binding decision on them. In most cases, the decision is final and un-appealable.
What is arbitration?
- A private, judicial determination by an independent third party. To arbitrate, a written agreement to do so must be in the contract. I.e More akin to construction contract disputes.
- It is a binding decision which is an alternative to litigation.
What is adjudication?
The decision is the responsibility of a legally appointed official which is interim binding. I.e binding unless the parties agree not to pursue in court.
What is hot-tubbing?
Where the arbitrator questions both councils experts at the same time rather than hearing them sequentially.
What were the aims of the woolf report?
- Prevent as many cases going to court - civil cases
- Promote ADR
- Reduce disputes through early information exchange
- Encourage settlements in order to save on expensive court costs.
What is a conflict of interest?
- When a firms independence and impartiality is threatened due to the existence of a conflict between two clients.
- Examples: financial interest, personal interest, commercial relationships, acting on both sides of a transaction.
What is the professional statement given by the RICS on conflict of interest?
RICS Conflicts of Interest 2017.
- This states that a member must not give advice or represent a client where doing so would involve a conflict of interest or significant risk of a conflict of interest, unless they have provided their informed consent.
- Informed consent is where the RICS member or firm is satisfied that those affected by the conflict wish to proceed, knowing there is a conflict. Given in writing. Explaining that the position to them is entirely transparent.
- All conflicts are to be managed in accordance with the professional statement.
- Every RICS Firm must have in place effective systems and controls appropriate for the size of their firm.
- All Firms must keep records to show compliance.
Name three types of conflict.
- Party Conflict - same or related instruction for two different parties.
- Own Interest Conflict - personal interest in the instruction/party.
- Confidential Information Conflict - relating to work between two parties which is
confidential.
Conflict Avoidance vs Conflict Management
- Avoidance is not accepting the instruction.
- Management is when the instruction is accepted but the appropriate steps are in place,
such as an information barrier, written agreement etc.
How would you handle a Conflict of Interest? (3 steps)
- Conflict Avoidance. (not accepting the instruction).
- Written advice to both parties. Disclose the conflict, procedures for management,
clarity, seek written confirmation. - Conflict Management.
