Conflict Avoidance, Management & Dispute Resolution Procedures Flashcards
- What is JLLs complaints handling procedure?
a. Detail of complaint must be made to complaints handling officer in writing
b. CHO contacts complainant within 7 days to get a better understanding
c. CHO gives outcome to complainant in writing within 28 days
d. If complainant is dissatisfied, CHO attempts resolution via negotiation
e. If there’s still no solution, complaint is referred to Arbitration Procedure for Surveying Disputes Business to Business Complaints or the Centre for Effective Dispute Resolution
- What are the ways in which disputes can be resolved?
a. Negotiation – Parties negotiate between themselves
b. Mediation – 3rd party intervention that doesn’t bind parties to a decision but assists resolution
c. Adjudication – Outcome is determined by a 3rd party, such as litigation or arbitration
- What is Litigation?
a. The process of taking legal action
- What is Arbitration?
a. The use of an independent person or body to settle a dispute
- When do you conduct conflict of interest checks?
a. Prior to commencing work on an instruction
- What is a conflict?
a. When personal interests could compromise your judgement
- What would you do if there was a potential conflict?
a. Use RICS ethics decision tree to determine if I should continue
- Can you act on behalf of a friend?
a. Valuer should judge if the relationship will affect their judgement
b. An existing relationship should be recorded a 3rd party can make an assessment
- How do you manage conflicts?
a. Three steps to consider when a conflict arises:
1. Conflict avoidance – is conflict unavoidable? If so, do not accept the instruction
2. Written advice to both parties – If you want to accept the instruction, the following must be set out in writing:
i. Disclose nature of conflict, and how your firm will deal with this
ii. Be as clear as possible
iii. Request written confirmation of clients’ informed consent
3. Conflict management – After receiving informed consent, setup information barrier with provisions agreed by both clients
- What is an information barrier?
a. Procedures put in place to ensure a firm can manage a potential conflict. This could be ensuring a clean desk, physical separation of surveyors, password protected files, separate support staff
- What is incremental advice?
a. When an agent is approached by another party for advice related to purchase/disposal that is incremental to an existing instruction
b. Example: estate agent approached by buyer to undertake a valuation
c. RICS members can only provide incremental advice if consent is given and info barriers are in place
- What is informed consent?
a. Consent to carry on with an instruction that involves a conflict of interest. Can only be given in writing by the party if it is entirely transparent about any material factors. Party must understand what they are doing. Surveyors should only seek informed consent if satisfied that all parties are best served by doing so
- What are the types of conflict?
a. Party conflict – when you work on the same instruction for two clients
b. Own interest conflict – relating to a personal interest
c. Confidential information conflict – relating to work between two parties that is confidential
- What is the RICS DRS? What are the various resolution opportunities it offers?
a. RICS Dispute Resolution Service – found on RICS website
b. Offer DRS for:
i. Dilapidation disputes
ii. Adjudication services
iii. Construction and engineering arbitration service
iv. Neighbour dispute service
v. Mediation services
- What are some advantages of Alternative dispute resolution?
a. Quicker than court proceedings
b. Informality
c. Less expensive than litigation
d. More opportunity for negotiation
e. Confidentiality
f. Quality of decision making – outcome can be made by a surveyor rather than a judge
- What is the CEDR?
a. Centre of effective dispute resolution
b. Approved by RICS, the RICS Scheme is an independent adjudication service that has been set up to resolve disputes between member firms of RICS and their customers
What are some forms of ADR?
a. Mediation
b. Arbitration
c. Independent Expert determination
What does mediation involve?
i. Neutral mediator facilitates discussions
ii. Confidential and informal process
iii. Conducted without prejudice basis
iv. Mediator cannot impose a resolution
v. RICS Guidance Note on Mediation 2014
What does arbitration involve?
a procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision on the dispute
i. Arbitrator appointed in accordance with Arbitration Act 1996
ii. Arbitrator has specialist knowledge of subject
iii. Arbitrator cannot be sued for negligence
iv. The decision can be over-ruled by Court of Appeal
v. Fast, cost effective and confidential
vi. Surveyors can act as arbitrator if they’ve passed Chartered Institute of Arbitrators exams
vii. Professional Arbitration on Court Terms (PACT) is a form of arbitration for lease renewal disputes
What does Independent Expert Determination involve?
i. Independent expert appointed by the two parties or by the president of the RICS if undertaken by the RICS DRS for disputes such as rent reviews
ii. They will have expert knowledge of the subject
iii. Both parties bound by decision
iv. Both parties present evidence to the expert
v. RICS Guidance Note on Independent Expert Determination 2016
- What is in the Arbitration Act 1996?
a. The Arbitration Act 1996 is an Act of Parliament which regulates arbitration proceedings
- What guidance is there on expert witness?
a. RICS practice statement & Guidance note Surveyors Acting as Expert Witnesses 4th edition 2014 (amended 2023)
i. Only accept to be a witness if you have knowledge, training and experience on that topic
ii. You cannot be a witness if you have a conflict of interest
iii. A success related fee is not allowed
iv. Expert witnesses are now not immune from civil action
- What guidance is there on acting as an advocate?
b. RICS Professional Statement Surveyors Acting as Advocates 2017
i. A surveyor acting as an advocate represents their client at a judicial hearing/tribunal
ii. They have a duty solely to the client
iii. They must be competent to act in this advocacy role
- When would you decline an instruction?
a. If there is a conflict of interest
b. If you are not competent
- Would you accept a gift from a client?
a. Register the gift with my firm
b. If below £200 then accept, if above decline
c. If it’s hospitality, register with firm and accept if below £1000, reject if over £1000
a. Register the gift with my firm
b. If below £200 then accept, if above decline
c. If it’s hospitality, register with firm and accept if below £1000, reject if over £1000
a. Public sector – gifts over £15 and entertainment over £30 require pre-authorisation
b. Private sector – Gifts over £60 and entertainment over £120 must be reported
c. Private sector – Gifts and entertainment over £500 require pre-authorisation
d. Cash and cash equivalents are not to be accepted, including retail vouchers
- What is your firm’s gift receiving policy?
a. Register the gift with my firm
b. If below £200 then accept, if above decline
c. If it’s hospitality, register with firm and accept if below £1000, reject if over £1000
- Can a client pay for their service in cash?
a. Up to £10,000
b. But JLL do not accept cash
- What is adjudication?
a. Commonly used for construction payment disputes
b. Only Construction pathway candidates really need to know this
- How do you conduct a conflict of interest check?
a. Enter property details and client details onto client management system
b. This flags all previous jobs with client
c. If there is a conflict, speak with legal and compliance to determine whether its okay to proceed
- Who can you turn to for Dispute Resolution?
a. RICS ADR Services
- When would RICS become involved in a complaint?
a. If JLL’s complaints handling procedure can’t solve the issue
b. Complaint is referred to Arbitration Procedure for Surveying Disputes Business to Business Complaints or the Centre for Effective Dispute Resolution
- What is the RICS Conflict Avoidance Process?
a. RICS Ethics Decision Tree
- Explain the RICS Guidance Note Conflicts of Interest for Members acting as Dispute Resolvers, 2020?
a. Assists those who are appointed by the President of the RICS or directly by the parties to a dispute
b. Essentially every dispute resolver should be impartial until the dispute is settled
- Tell me about the RICS Conflict of Interest, professional statement 2017?
b. Three steps to consider when a conflict arises:
4. Conflict avoidance – is conflict unavoidable? If so, do not accept the instruction
5. Written advice to both parties – If you want to accept the instruction, the following must be set out in writing:
iv. Disclose nature of conflict, and how your firm will deal with this
v. Be as clear as possible
vi. Request written confirmation of clients’ informed consent
6. Conflict management – After receiving informed consent, setup information barrier with provisions agreed by both clients
- What is hot tubbing?
a. Hot-tubbing is another term for concurrent expert evidence, which is where both parties’ experts give their evidence together in the form of a discussion chaired by the judge. The judge puts the same questions to each expert in turn, rather than each expert being examined and cross-examined sequentially
- What is a Calderbank letter?
a. A Calderbank offer, also known as a Calderbank letter or Calderbank proposal, is an offer of settlement made by one party to another to resolve a legal dispute. It encourages parties to negotiate instead of going to trial. It must be a genuine compromise open for a reasonable period
