Conflict Avoidance, Management & Dispute Resolution Procedures

Question 1

What are general conflict avoidance techniques?

Answer 1

• Good Managment
  
  • ​A surveyor who proactively manages a project
• Clear contract documents
  
  • ​Disputes arising from ambiguities
• Partnering and alliancing
  
  • ​Co-operation between project participants
• Good client management
  
  • ​Understanding of clients objectives
• Good constrcutor management
  
  • ​Having an objective understanding of the project, the contract and the programme of works
• Good design team management
  
  • ​The provision of iinformation within the team
• Good payment practice
  
  • ​All rely upon cash flow
• Record keeping
  
  • ​Many disputes can be resolved by keeping records

Question 2

What are good resolution techniques?

Answer 2

1. Negotiation
   
   1. the problem solving efforts of the parties themselves
2. Mediation or conciliation
   
   1. ​a third-party intervention does not mean that either party has to accept
3. Adjudication process
   
   1. ​The final decision is determined by a party and the dicision is binding upon the parties.

Question 3

What are good negotiation techniques?

Answer 3

• Negotiation
• The process where parties can agree between themselves.
• The power to settle the dispute rests with the parties.

1. What you don’t ask for you don’t get.
2. Shut up and listen
3. Be willing tto walk away from a deal if it is not right
4. Do not show you are in a hurry
5. Aim high and expect the best outcome
6. Focus on other sides weakness
7. Show how the needs will be met to the other side
8. Do not give anything away unless receiving something in return
9. Don’t take the other sides behaviour personally

Question 4

What is Mediation and Concilliation?

Answer 4

• Mediation and Conciliation
  
  • ​The parties agree to a third independant party to facilitate discussions between them. The main aim is to reach a settlement.
  • Only the parties can settle, but the process is led by the Mediator
  • It is Non Binding upon the parties
• Most likely held at a neutral location

Question 5

What is Expert Determination?

Answer 5

• Expert Determination
  
  • ​Parties agreed by contract that a third party will make a binding decision on them.
  • The terms are governed by the contract.
  • In most cases decission is final, and will not be possible to appeal.
  • This means the expert determines the dispute without further recourse.

Question 6

What is Adjudication?

Answer 6

• Adjudication
  
  • ​Widely used in construction industry. Applies to both Building contracts and professional appointment.
  • If the Act appliess to a contract then either party can request an Adjudicator within 7 days of serving a Notice of Dispute.
  • Adjudicator has 28 days to issue a decisions from the referral.
  • The decision will bind the parties and is enforceable in the Technology and Construction Court (TCC)
  • The TCC is the part of the High Court that deals with cconstruction litigation.

Question 7

What is Arbitration?

Answer 7

• Arbitration
  
  • ​Contract must contain a written agreement to Arbitrate.
  • If appliicable the parties may choose an Arbitration Procedure such as the Construction Industry Model Arbitration Rules.
  • Alternatiively, the Arbitration can be covered by the appicable legislation.

Question 8

What is litigation?

Answer 8

• Litigation
  
  • ​Courts have jurisdiction to hear a dispute in respect of almost anything.
  • Parties have the right to refer the matter to an appropriate court.
  • The procedure is Governed by the Civil Procedure Rules, and it is the nature, complexity and value that will determine which Court will hear a particular dispute.
  • Courts can issue Charging Orders, summon witnesses and involve third parties.
  • Note:Bankruptcy and Insolvency proceeding such as administration and the winding-up are not primariily governed by the Civil Procedure Rules but by the Insolvency Act and related regulations.

Question 9

Where does litigation take place?

Answer 9

• Litigation takes place in:-
  
  1. ​​Court
  2. First Tier Tribunal
  3. Upper Tier Tribunal

Question 10

What is a lower tier tribunal (Property Chamber)?

Answer 10

A lower tier tirbunal deals with residential property disputes:

1. Leasehold Disputes
2. Leasehold enfranchisement
3. Rent increases for ‘Fair’ or ‘Market’ rates
4. Improvement notices & Prohibition orders - Housing Act 2004

Question 11

What is a Valuation Tribunal?

Answer 11

• A Valuation Tribunal deals with Council Tax and Business Rate Disputess.

Question 12

What is PACT (Professional Arbitration on Court Terms)?

Answer 12

• Either Party can make an application to Court
• Any time up to the expiry of either a Section 25 or Section 26 Notice

Question 13

When can PACT be used?

Answer 13

1. An In-Court PACT is designed for an unopposed new tenancy where one party have made application to Court to fix the terms of the new tenancy.
2. Out of Court PACT is used when no Court application has been made by either party and the parties agree to a postponement of an application pending an out of court PACT resolution.

Question 14

What issues can PACT determine?

Answer 14

1. Duration of the new lease
2. Repair
3. Decoration
4. Alienation
5. Service Charge
6. Rent Reviews
7. Break Clause
8. Lease Renewals
9. Rent
10. Interim Rent

Question 15

What are dispute boards?

Answer 15

• Dispute Boards
  
  • ​Dispute boards sit between Avoidance and Dispute Resolution
  • They deal with Dispute Review or Dipute Recommendation Boards (DRBs)
  • A dispute board consists of Three board members who are appointed at the start of a project.
  • They become farmilliar with the project by reviewing the project documentation.

Question 16

What is Dual Agency?

Answer 16

• Dual Agency - Mandatory from 1 Jan 2018
  
  • Dual agency is where an Agent can have a conflict of interest if acting for both the Seller and Purchaser.
  • This cannot happen as it is against RICS rules and regulations.
• Related Firms
  
  • ​Where a buyer or seller is related to the firm there is an increased risk that the agent is unable to act.
  • However, Note 3 of global RICS professional statement, Conflicts of Interest, 1st Edition, March 2017 stated that this might not be the case if the following are satisfied.
  1. firms are seperate entities
  2. no directors, partners or employees in common
  3. no direct or indirect fee sharing
  4. no access to information or common internal data sharing arrangements relating to the area of conflict.
• Multiple Introductions
  
  • Must request in writing from new client that you can act as already acting for another client with similar interests.
  • Terms of Engagement must be agreed and it must be clear if the agennt is acting on an exclusive or non-exclusive basis.
  • If exclusive then agent can only act for one.
  • If non-exclusive then agent must obtainconsent from teh clients subject to information barriers being present.
• Incremental advice
  
  • ​This occurs if an agent acting for a vendor is approached by a purchaser or the lender to provide a valuation.
  • Information barriers must be in place and must maintaiin confidentiality at all times.
  • where the agent has a sale instruction the client must be notified before advice is provided to a prospective buyer.

Question 17

Further Reading Material.

Answer 17

1. RICS Guidance Note, UK Meadiation 1st Edition
2. RICS Practice Statemetn and Guidance Note, Surveyors acting as expert witnesses 4th Edition, amended August 2020
3. RICS professional standards and guidance, UK Conflicts of interest - UK commercial property market investment agency 1st edition, May 2017

Question 18

Typical Questions at an asssessment.

Answer 18

1. Why might I use negotiation over adjudication.
2. Can you provide a couple of Dispute Resolution Procedures.