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Conflict avoidance, management & dispute resolution Flashcards

1
Q

What is a conflict?

A

A disagreement.

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2
Q

When do disputes arise in your role?

A

TBC

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3
Q

What can you do if negotiations break down?

A

TBC
Dispute Resolutions?

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4
Q

What is a conflict of interest?

A

When someone’s judgement or actions at work are or could be affected by something unconnected with their role.

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5
Q

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

A

Consider if the conflict is irresolvable and should be avoided or whether it can be properly managed.
Decide whether you want to accept or decline the instruction form Client A or Client B.

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6
Q

Give examples of ways that conflict can be avoided.

A

By not accepting the instruction.
Managed through transparency and openness. -
Written Informed Consent

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7
Q

Why is good management important?

A

Allows you to proceed with an instruction through information/ethical barriers.

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8
Q

What are the benefits of clear contract documentation?

A

Clarity prevents any future issues. Differing interpretations can cause contracts to arise.

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9
Q

What is partnering or alliancing?

A

A collaborative approach that encourages openness & trust between parties to a contract.

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10
Q

Why is good project or instruction management important?

A

Enables leadership to plan & manage projects so that every objective & deliverable is completed on time & on budget.

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11
Q

How can good client management reduce conflict?

A

Clear, concise communication. Managing parties’ expectations. Keeping good records helps avoid later conflict or enable efficient resolution.

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12
Q

Give examples of good payment practices.

A

Pay in full, pay on time, itemize all payments, set out who is responsible for the payment.

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13
Q

How can good record keeping avoid conflict?

A

Makes the facts clear to all parties so if a conflict arises the facts can help.

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14
Q

How do reporting and proactivity reduce conflict?

A

Keeps people informed and aware of potential issues.

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15
Q

What are the three pillars of dispute resolution?

Who introduced these terms?

A
  1. Negotiation – problem-solving efforts of the parties themselves.
  2. Mediation or conciliation – A third party intervention which doesn’t not bind the parties to a decision but assists them to resolve difficulties.
  3. Adjudicative process – An outcome is determined by a third party, such as litigation and arbitration.

Professor Green of Boston University

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16
Q

How do mediation and conciliation differ globally?

Why is this important to be aware of?

A

They are treated differently. In China mediation is more coercive.

Differ in many countries.

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17
Q

What is Alternative Dispute Resolution (ADR)?

A

Alternative to traditional binding dispute processes of litigation and arbitration. It provides a faster and more economic dispute resolution process.

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18
Q

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

A

Speed, Informality, grater opportunity for negotiation, less cost.

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19
Q

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

A

Drapers Yard. Send client and tenants around internally to check for any conflicts.

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20
Q

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

A

Adopt proactive conflict of interest risk analysis, what could go wrong or how misinterpretation between parties may arise. Obtain informed consent in writing by giving an entirely transparent explanation in writing.

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21
Q

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

A
  • ‘Conflicts of interest – UK Commercial Property Market Investment Agency’, 2017
  • Conflicts of interest for Members acting as Dispute Resolvers, 2017
  • RICS Guidance Note in Mediation, 2014
  • RICS Guidance Note on Independent Expert Determination, 2016
  • RICS Practice Statement ‘Surveyors acting as expert witnesses’ 4th edition 2014.
  • ‘Surveyors Acting as Advocates’, 2017
  • ‘Conflict avoidance & dispute resolution in construction’, 2012
  • ‘Conflicts of Interest Global’, 2017
22
Q

What is the practice of dual agency/double dipping?

A

Where an agent has a contractual relationship with both the seller & buyer at the same time.

23
Q

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

A

‘Conflicts of interest – UK Commercial Property Market Investment Agency’, 2017
” dual agency must not be undertaken under any circumstances.”

24
Q

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

A
  • An arbitrator is appointed in a quasi-judicial role and parties are bound by the decision. Arbitrators can order a hearing or consider written representations.
  • An independent expert is appointed by the two parties, parties are bound by the decision
25
Can you tell me about any other types of ADR?
Mediation – neutral mediator, informal, not bound. Adjudication – commonly for construction payments
26
Can you tell me about mediation/conciliation/adjudication?
Mediation / Conciliation – third party intervention, parties do not bind to decision. Adjudication – Outcome determined by a third party.
27
What is the Technology & Construction Court and what is its role?
A specialist court with specialist judges who deal with all types of construction, engineering, and technology disputes both from within the UK and which arise internationally.
28
Explain the role of the Civil Procedure Rules (CPRs). What does CPR Practice Direction 35 relate to?
A single code of rules setting out how a case is to be conducted in the civil courts in England & Wales. Intended to limit the use of oral expert evidence to that which is reasonably required. In addition, where possible, matters requiring expert evidence should be dealt with by only one expert.
29
What governs dispute resolution during insolvency or bankruptcy proceedings?
Alternative Dispute Resolution (ADS)
30
What is a Dispute Review or Recommendation Board (DRB)? How does this process work?
A ‘job-site’ dispute adjudication device. Typically, three independent and impartial persons are selected by contracting parties. They issue recommendations that are not immediately binding on the parties, however become so if no party objects within 30 days.
31
What is a Dispute Adjudication Board (DAB)?
Usually appointed at the start of a project before any disputes arise, they undertake regular visits to the site and are actively involved in the project throughout. THE DAB issue decisions that must be complied with immediately.
32
What are the relevant timescales for adjudication?
28 days from start to finish.
33
Which Act governs adjudication?
Housing Grants, Construction and Regeneration Act 1996
34
What is the basic principle of adjudication?
The judicator’s decision is binding & enforceable unless the dispute is resolved by litigation / arbitration or agreement of parties.
35
What claims is adjudication appropriate for?
Commonly for construction payment disputes.
36
What is the aim of adjudication?
To resolve issues between parties.
37
Explain the various adjudication services provided by RICS.
Construction Adjudication Low Value Dispute Adjudication – where the sum claimed is less than £100,000. Summary Adjudication – Claims below £20k.
38
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?
Intended to ensure that payments are made promptly throughout the supply chain and that disputes are resolved swiftly. 28 days
39
Explain what the role of the RICS Low Value Dispute Adjudication service is. What level of claim can this service be used for? What makes this process cost effective?
Resolves disputes where the sum claimed is less than £100k and don’t involve multiple or complex issues. 100K The strict timescales
40
How does homeowner adjudication work under the Construction Act?
Unless both parties agree, construction act adjudication does not apply automatically to a contract where one party is a residential occupier & the contract works have been carried out on their home. JCT building contracts for a homeowner includes specialist provisions tailored for dealing with disputes between commercial businesses & consumers.
41
Can you tell me about PACT in relation to lease renewals?
A process where the determination of all or some of the terms of a renewal lease is ‘delegated’ to an independent third party who may either act as an arbitrator or as an independent expert.
42
What is the role of RICS in dispute resolution?
The world’s oldest & largest provider of ADR. Offers a range of dispute resolution services.
43
What is the difference between an expert witness & an advocate
Expert witness – provides evidence to a judicial body for the court. Advocate – Represents the client.
44
How does your duty of care differ in the two roles?
Expert Witness - Duty of care is to the court and not the client. Advocate – Acting for client, duty to the client.
45
What tribunals are you aware of?
Regulatory tribunal – independent members & RICS members, who form panels and single member which independently determine regulatory cases including disciplinary cases. Tribunal operates at an arm’s length from the RICS. Valuation tribunals – Responsible for the judicial functions of 56 local tribunals.
46
When might the Lands Tribunal be involved in a dispute?
The tribunal resolves a range of disputes about the value of land and buildings, and about their occupation, use or development.
47
What are the differences between conflict avoidance and dispute resolution?
Conflict Avoidance – when you don’t accept the instruction or if it can be managed. Dispute resolution – involves negotiating or third-party involvement.
48
Which dispute resolution procedures lead to a binding decision?
Arbitration and Independent Expert determination
49
What is a Scott Schedule and when would one be used?
Schedule used in court proceedings in the Family Court to clearly set out the allegations which are in dispute.
50
Explain the RICS conflict avoidance pledge to me.
Collaborative working and early intervention techniques throughout the supply chain, to try resolve differences before they escalate into disputes. Commit with industry partners to identify, promote and utilize conflict avoidance mechanisms. Signing up shows; you’re a good business to work with, you maintain relationships, your business is fully committed to delivering value for money.
51
What RICS guidance relates to conflicts of interest for dispute resolvers?
‘Conflict of interest for members acting as dispute resolvers’ 2020

APC (14 decks)

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