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APC 2023 > Conflict Avoidance, Management & Dispute Resolution - Level 1 > Flashcards

Conflict Avoidance, Management & Dispute Resolution - Level 1 Flashcards

1
Q

What is a conflict?

A

A situation in which two or more parties have opposing interests, needs or objectives, leading to a disagreement or dispute.

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2
Q

When do disputes arise in your role?

A
  1. Lease agreements
  2. Dilapidations
  3. Service charges
  4. Rent reviews
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3
Q

What can you do if negotiations break down?

A
  1. Mediation - independent third party to help facilitate discussions between two parties and work towards a mutually acceptable outcome
  2. Arbitration - independent third party to make a binding decision on the dispute
  3. Litigation - taking a dispute to court (generally a last resort)
  4. Revisiting the negotiation strategy - identify sticking points and find ways to address them
  5. Seeking advice - from a legal professional or a specialist in dispute resolution
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4
Q

What is a conflict of interest?

A

A situation where an individual or organisation has competing interests, loyalties or obligations that interfere with their ability to make unbiased decisions or act in the best interest of one party.

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5
Q

What do the RICS Rules of Conduct say about avoiding conflicts of interest?

A

Members must avoid conflicts of interest and disclose any potential conflicts that could arise during their work. RICS emphasis the importance of transparency and ensuring that clients are aware of any potential conflicts of interest.

Members are required to act in the best interest of their clients and maintain the integrity of the profession.

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6
Q

Give an example of ways that conflict can be avoided

A
  1. Disclosure
  2. Recusal
  3. Separation of duties
  4. Independent advice
  5. Use of ethical codes and guidelines
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7
Q

Why is good management important?

A

Minimises negative impacts of conflicts

Improves relationships between parties involved

Promotes creativity and innovative solutions to problems

Enhances decision making by identifying the best course of action

Maintains reputation and credibility

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8
Q

What are the benefits of clear contract documentation?

A
  1. Clarity - avoid misunderstandings and ensures understanding of terms and conditions of the agreement
  2. Legal protection - outlines rights and obligations of each party
  3. Better relationships - establishing clear expectations and guidelines
  4. Time and cost savings - reduces need for negotiations and resolving of issues efficiently
  5. Compliance - with laws and regulations
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9
Q

What is partnering or alliancing?

A

A collaborative approach to project delivery that involves the client, contractor and other stakeholders working together as a team. It is based on the principle of trust, openness and shared goals with the aim of creating a more efficient and effective project delivery team.

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10
Q

Why is good project or instruction management important?

A
  1. Meeting objectives
  2. Resource optimisation
  3. Risk management
  4. Stakeholder management - reducing likelihood of dispute
  5. Improved communication - promotes transparency and improves effectiveness
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11
Q

How can good client management reduce conflict?

A
  1. Clear communication - ensures client needs and expectations are understood and can be met by the surveyor
  2. Managing expectations - explain what is possible and the timeframe required to prevent unrealistic expectations
  3. Regular updates - keep the client informed to avoid unexpected outcomes
  4. Flexibility - be responsive to client needs to build trust and confidence in ability
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12
Q

Give examples of good payment practices

A
  1. Paying on time
  2. Providing clear payment terms
  3. Communicating effectively
  4. Promptly addressing disputes
  5. Offering payment incentives
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13
Q

How can good record keeping avoid conflict?

A
  1. Helps to track progress - helps to avoid misunderstandings and disputes
  2. Help to manage expectations
  3. Can provide evidence if a dispute arises
  4. Can help with future projects - providing insight into how a project was managed and what worked well
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14
Q

How do reporting and proactivity reduce conflict?

A
  1. Transparency
  2. Early warning
  3. Accountability
  4. Collaboration

Essential for managing projects and avoiding conflict

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15
Q

What are the three pillars of dispute resolution? Who introduced the terms? Give examples of each

A
  1. Negotiation - reach mutually acceptable terms
  2. Mediation - structured third party process
  3. Arbitration - legally binding decision by neutral third party

Introduced by Construction Industry Institute

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16
Q

How do mediation and conciliation differ globally? Why is this important to be aware of?

A

Mediation = structured process, with a trained mediator acting as a neutral third party to facilitate negotiations (mediator does not have decision-making authority)

Conciliation = less formal process that relies on parties themselves to negotiate a resolution with the help of a conciliator

In some jurisdiction, the terms are used interchangeably, while in other they are distinct forms of ADR with different procedures and rules. The laws and regulations governing ADR can vary from country to country, making it important to understand the specific rules and practices in your jurisdiction.

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17
Q

What is an Alternative Dispute Resolution (ADR)?

A
  1. Mediation
  2. Arbitration
  3. Independent expert determination
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18
Q

Why might you prefer to pursue ADR rather than litigation through Courts?

A
  1. Cost
  2. Speed
  3. Confidentiality
  4. Control
  5. Flexibility
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19
Q

Tell me about a conflict of interest check you have carried out

A

TBC

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20
Q

What would you do if you identified a perceived/actual conflict of interest?

A
  1. Disclose the conflict of interest to client, employer and any other stakeholder
  2. Assess the potential risks and whether the conflict will impact impartiality
  3. Take steps to manage the conflict by putting measures in place to ensure judgement remains impartial
  4. Withdraw from the situation if necessary
21
Q

Can you tell me about any RICS guidance relating to conflicts of interest?

A

RICS Global Professional Statement on Conflicts of Interest, 2017 (effective 1st January 2018)

A member must not advise or represent a client where doing so would involve a conflict of interest or a significant risk of a conflict of interest, other than where all those who are, or may be affected have provided their informed consent.

Informed consent may only be sought where the RICS member or regulated firm is satisfied that proceeding despite a conflict of interest is in the interests of all of those who are or may be affected and is not prohibited by law

22
Q

What is the practice of dual agency/double dipping?

A

Representing both parties in the same transaction.

Presents a conflict of interest as the agent has a legal duty to act in the best interest of both parties, which may not always be aligned.

23
Q

Can you tell me about any recent RICS guidance relating to dual agency/double dipping?

A

RICS Professional Statement Real Estate Agency and Brokerage, 3rd edition, August 2016

24
Q

What is the difference between an arbitrator and an independent expert?

A

An arbitrator is a neutral third party appointed to make a final and binding decision on the matter.

An independent expert is appointed by one or both of the parties to provide expert opinion on a specific issue. the expert may be required to provide a report or give evidence in court, but their opinion is not binding.

25
Q

Can you tell me about mediation/conciliation/adjudication?

A

Mediation = structured process, with a trained mediator acting as a neutral third party to facilitate negotiations (mediator does not have decision-making authority)

Conciliation = less formal process that relies on parties themselves to negotiate a resolution with the help of a conciliator

Adjudication = neutral third party appointed to resolve disputes that arise during a construction project

26
Q

What is the Technology & Construction Court and what is its role?

A

Specialist court in the UK that deals with disputes related to construction, engineering and technology.

Designed to provide a forum for the quick and efficient resolution of disputes in these specialised areas.

27
Q

Explain the role of the Civil Procedure Rules

A

Set of rules governing the conduct of civil litigation in England and Wales. The rules are designed to promote the just, efficient and proportionate handling of cases by the courts, and to ensure that disputes are resolved as fairly and quickly as possible.

28
Q

What does CPR Practice Direction 35 relate to?

A

The use of expert evidence in civil proceedings, setting out requirements for parties who wish to rely on expert evidence and provides guidance on how the evidence should be presented.

29
Q

What governs dispute resolution during insolvency or bankruptcy proceedings?

A

The insolvency Act 1986

30
Q

What is a Dispute Review or Recommendation Board? How does this process work?

A

Type of dispute resolution process used in construction projects. Involving a panel of impartial experts who are appointed at the beginning of a project to review disputes as they arise, and to make non-binding recommendations to resolve them.

31
Q

What is a Dispute Adjudication Board? How do these work?

A

Neutral panel of professionals appointed at the beginning of a construction contract to resolve disputes between parties that may arise during the contract execution.

32
Q

What are the relevant timescales for adjudication?

A

Under the Construction Act 1996, if a dispute arises, the parties involved have the right to refer the dispute to adjudication. The adjudicator must then be appointed within 7 days, and the decision must be reached within 28 days of the referral unless a different timeframe is agreed upon by both parties.

33
Q

Which Act governs adjudication?

A

Construction Act 1996

34
Q

What claims is adjudication appropriate for?

A

Payment disputes and issues with the quality of workmanship or materials used.

35
Q

What is the aim of adjudication?

A

Provide a quick and relatively inexpensive resolution to disputes in the construction industry.

36
Q

Explain the various adjudication services provided by RICS

A
  1. RICS adjudication
  2. RICS dispute resolution service
  3. RICS expert witness service
  4. RICS dilapidations scheme
37
Q

What is PACT in relation to lease renewals?

A

Professional Arbitration on Court Terms - voluntary scheme for resolving lease renewal disputes between LLs and Ts

LLs and Ts can agree to appoint an independent expert to determine the rent and other terms of a new lease. The expert considers evidence presented and makes a binding decision.

38
Q

What is the role of RICS in dispute resolution?

A

Provide guidance and support for dispute resolution through services including mediation, expert determination and arbitration.

39
Q

What RICS guidance are you aware of relating to dispute resolution, ADR or roles in dispute resolution?

A

RICS Dispute Resolution Service Standards and Procedures
RICS Professional Statement: Conflicts of Interest, 2017
Guidance Note: Alternative Dispute Resolution

40
Q

Tell me about your role if you were acting as an expert witness/advocate. What is the difference between the two? How does your duty of care differ?

A

An expert witness provides evidence and opinions based on their expertise in a particular field to assist the court in reaching a decision. An advocate, on the other hand, is a legal representative who presents the case of a party in court.

The duty of care for an expert witness is to provide impartial and independent evidence based on their expertise without taking any sides or making any unsupported claims. They should ensure that their evidence is accurate and reliable, and they must disclose any potential conflicts of interest.

As an advocate, the duty of care is to act in the best interest of their client and present their case in the most effective way possible, within the boundaries of ethical and legal standards.

41
Q

What tribunals are you aware of?

A

Employment Tribunals
Lands Tribunal

42
Q

When might the Lands Tribunal be involved in a dispute?

A

In disputes over leasehold or freehold property rights, boundary disputes, compensation claims arising from compulsory purchase orders and disputes involving the registration of land.

43
Q

What are the differences between conflict avoidance and dispute resolution?

A

Conflict avoidance refers to the process of taking proactive measures to prevent conflicts from arising in the first place. This involves identifying potential sources of conflict and implementing strategies to minimise the likelihood of disputes arising.

Dispute resolution is the process of resolving a conflict that has already arisen. Dispute resolution techniques can be classified in two broad categories: non-binding and binding.

Non-binding = negotiation, mediation and expert determination

Binding = arbitration and litigation

44
Q

Which dispute resolution procedures lead to a binding decision?

A

Arbitration and litigation

45
Q

What is a Scott Schedule and when would one be used?

A

Document used in dispute resolution to list and summarise the disputed points between two parties. it is typically used in construction disputes.

46
Q

Explain the RICS conflict avoidance pledge

A

Voluntary commitment made by RICS members, firms and organisations to promote conflict avoidance and early resolution in the construction and real estate industries. The pledge is designed to improve working relationships between parties in the industry and reduce the number of disputes that escalate into costly and time-consuming legal proceedings.

47
Q

What RICS guidance relates to conflicts of interest for dispute resolvers? When was this last updated and what changes were made?

A

RICS Guidance Note - Conflicts of interest for Members acting as Dispute Resolvers, 2017

48
Q

How has dispute resolution in the property and construction industries been used effectively during Covid-19?

A

Dispute Avoidance and Resolution Task Group produced a guide on dispute avoidance and resolution during COVID-19, which provides practical advice on how to manage disputes, including how to use technology to facilitate remote dispute resolution.

49
Q

Explain the proposed provisions of the Commercial Rent (Coronavirus) Bill

A
  1. Temporary ban on landlords issuing statutory demands and winding-up orders to commercial tenants for non-payment of rent
  2. A temporary ban on landlords using CRAR to recover rent arrears from tenants
  3. The creation of a new statutory code of practice to encourage tenants and landlords to work together to agree on affordable and realistic rent payment plans firing the pandemic
  4. The extension of the notice period that landlords must give to tenants before taking legal action to recover commercial rent arrears

APC 2023 (37 decks)

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