Conflict Avoidance Management & Dispute Resolution Level 1 Flashcards
What is a conflict?
A disagreement between individuals or groups - usually in professional context a disagreement between contractor and client
When do disputes arise in your role?
At any time, but most often in relation to valuation of change, or valuation of contractors interim application or final account
What can you do if negotiations break down?
Know about conflict avoidance - RICS practice guidance “conflict avoidance and dispute resolution in construction” is starting point
What is a conflict of interest?
When two parties have different interests in same issue -
- a situation where RICS member to act in the interest of a client or other party in a professional assignment conflicts with a duty owed to another party or client in the same professional assignment.
What do the RICS rules of conduct say about avoiding conflicts of interest?
Professional Standard on Conflicts of Interest says that RICS member must not advise or represent a client where doing so would involve a conflict of interest or serious risk of conflict of interest
Give examples of ways that conflict can be avoided
- Good management: proactive management of a project
- Clear contract documentation: ambiguities lead to conflict - clear documents reduce risk
- Partnering and alliancing : co-operation between parties to resolve problems and deliver project
- Good project management : proactively managing all aspects of time, money and risk
- Good client management: good understanding of clients objectives and approach to risk
Why is good management important?
Proactive management and planning and managing future work, raising issues of concern, provide confidence
What are the benefits of clear contract documentation
Avoid ambiguities in contract documentation or argument if there is a contract at all. The real cause of a dispute might lie elsewhere eg contractor in financial difficulties in respect of project might seek to exploit ambiguities in order to recoup its financial position.
What is partnering or alliancing?
A different approach to project that builds co-operation between project participants in order to foster team working problem solving and emphasis on project delivery
Why is good project or instruction management important?
Proactive management of time, money and risk associated with project involves addressing some of most difficult issues.
Allocating responsibility for any and all items to others is never adequate
How can good client management reduce conflict?
A good understanding of clients objectives and approach to risk is valuable as is good communication with client. Assist not only identifying how risks and issues are to be dealt with within contract documents and throughout project but will build sufficient rapport to avoid situation where client incorrectly believes that surveyor is simply in control of all aspects of project.
Give examples of good payment practice?
Design team and contractor rely on cash flow, once payment provisions have been agreed valuation should be carried out and payment made promptly.
How can good record keeping avoid conflict?
Retrospective consideration of records may resolve dispute - proper record of labour, plant and materials used. Obtaining daily record of site activities as well as regularly obtaining progress reports. Should include record of resource movement - ie when change occurs some record of how that change has impacted on project should be made contemporaneously.
How do reporting and proactivity reduce conflict?
Regular monitoring of cost, progress and quality - identify issues that are causing delay, increases in cost or quality problems as soon as practically possible - careful recording can track actions towards conclusion.
What are the three pillars of dispute resolution?
Negotiation
Mediation
Adjudication
Who introduced the terms three pillars of dispute resolution?
Professor Green of Boston University 1993
Give an example of each of the three different types of ADR mentioned in the 3 pillars of ADR
Negotiation - very informal, basic communication between parties to try to resolve issues and avoid conflict
Mediation - uses a neutral third party to help the parties to try to resolve issues and avoid conflict. Usually faciliatative but can be determinative if both parties agree that mediator can impose decision (however, that will only be if the mediator has not been able to assist the parties to find their own resolution).
Adjudication - formal process, follows procedure and rules about timing and documentation / evidence parties should submit. Third party will make a determination of how the issues are resolved.
How do mediation and conciliation differ globally
The interpretation differs - in China conciliation can be more coercive
Also the contract / agreement to conciliate or mediate can differ in procedure that is followed.
Why is it important to be aware of the differences between mediation and conciliation in different parts of the world?
So that can advise clients appropriately depending on what part of the world they are in as to what to expect and how the process will be followed
What is ADR?
The term for a variety of different methods of resolving disputes without litigation (court process)
Why might you prefer to pursue ADR rather than litigation through the courts?
ADR can be quicker, cheaper and preserve the business relationship between parties
Litigation can be costly, slow and destructive to the parties relationship
Tell me about a conflict of interest check that you have carried out
I haven’t had to - very small firm so know all clients and third parties and don’t do work where there is high risk of conflict.
What would you do if you identified a perceived/actual conflict of interest?
Review RICS practice standards - discuss with colleagues and assess whether it is a situation where possible to act with informed consent or not. If so follow guidance to obtain consent and put in place all measures necessary. If not - would inform client and /or third party that cannot act
Can you tell me about any RICS guidance relating to conflicts of interest?
RICS practice standard dated 2017.
What is the practice of dual agency / double dipping
When estate agency acts for multiple parties - often both buyer and seller or multiple buyers
Can you tell me about any RICS guidance relating to dual agency / double dipping?
Must not be undertaken in any circumstance - conflict of interest!
What is the difference between an arbitrator and an independent expert?
An arbitrator is appointed to review documents / information and make a determination on the dispute
An independent is appointed on behalf of both parties to review the documents / information and provide expert opinion for a judge / arbitrator to assist in their determination of the issue.
Can you tell me about any other types of ADR?
Arbitration - contract must include written agreement to arbitrate - similar to litigation in that parties must follow procedure to prepare for arbitration and have hearing.
Can you tell me about mediation
Independent third party is appointed by the parties to help them to find a solution to the dispute - both parties make concessions to find a way forward, the outcome can be anything that the parties are prepared to agree to as resolution and can be creative solution
Can you tell me about conciliation
Similar to mediation - parties agree on independent third party neutral system to facilitate discussions with goal of reaching settlement.
Can you tell me about adjudication
Introduced under Housing Grants Construction and Regeneration act (Construction Act) applies specifically to construction industry - if act applies either party can request appointment of adjudicator at any time provided that a dispute has “crystallised”. Adjudicator is appointed within 7 days of Notice of Dispute being served and adjudicator has 28 days fro issue of the referral to issue a decision.
What is the technology and construction court? What is its role?
It is a specialist part of the Kings Bench Division of the high court.
It has specialist judges with technical background who are best placed to hear and make judgement on disputes that involve technical or construction issues - they are familiar with specific processes and procedures that may arise in the construction industry
If you work with contracts, explain how dispute resolution works in a contract you have worked with?
Explain the role of the Civil procedure rules
The CPR are the rules that courts follow for litigation - set out how parties prepare case for court, the form and content of documents, timings for responses and submitting evidence and finally the process of the hearing.
What does CPR practice direction 35 relate to?
It relates to use of expert evidence in court hearings and covers the instruction of experts and assessors
What changes were made the Civil Procedure (Amendment) Rules 2023?
1) Qualified One way cost protection
2) Costs budgeting
3) Fixed costs value of cases increased from £25k to £100k
What governs dispute resolution during insolvency or bankruptcy proceedings?
Insolvency Act and related regulations
What is Dispute Review or Recommendation Board?
Between avoidance and dispute resolution.
3 dispute board members appointed at start of project - become familiar with project by reviewing docs through project and visiting site through course of works. If dispute arises they can be asked for their non binding recommendation.
How does the Dispute Review or Recommendation Board work?
3 dispute board members appointed at start of project - become familiar with project by reviewing docs through project and visiting site through course of works. If dispute arises they can be asked for their non binding recommendation.
What is a Dispute Adjudication Board (DAB)
How do these work?
Similar to dispute review board but make formal written decisions which bind the parties. (difference is therefore between review and recommendation and binding decisions)
What are the relevant timescales for adjudication?
Once dispute referred adjudicator appointed within 7 days of issue of notice.
Decision must be given within 28 days of issue of referral - referring party can extend period by up to 14 days but any further extension must be approved by both parties. Very little leeway available to adjudicator.
Which Act governs Adjudication?
Housing Grants Construction and Regeneration Act 1996
What is the basic principle of adjudication?
Primary purpose is to resolve disputes
What claims is adjudication appropriate for?
Interim payments
Delay and disruption of works
Extensions of time for completion
The Final Account
What is the aim of adjudication?
To resolve a dispute
Explain the various adjudication services provided by the RICS
Construction Adjudication
Low value adjudication
Summary adjudication
Homeowner adjudication
Adjudication nomination board
Expert panel of adjudicators
Explain the impact of the Housing Grants Construction and Regeneration Act 1996 (Construction Act) on dispute resolution and construction contracts
Design to ensure prompt payments and avoid protracted disputes, as a result new issues such as “smash and grab litigation”
What timeframe is relevant under the Construction Act?
Payment notices and payless notices - must be served within timeframe specified in contract which is usually within 5 days after due date for payment.
Explain what the role of the RICS Low Value Dispute Adjudication service is?
Construction related dispute where sum claimed is less than £100k and does not involve multiple or complex issues.
What level of claim can the RICS Low Value Dispute Adjudication service be used for?
Claim with value of less than £100k
What makes the RICS Low Value Dispute Adjudication service cost effective?
Straightforward and accessible - can visit the CIC for more information on procedures.
Adjudicator nominated by RICS limits the length and time for submissions ensuring focused review of dispute.
Both parties required to condense their docs into no more than one A4 lever arch file.
How does homeowner adjudication work under the Construction Act?
Disputes where construction work carried out under JCT Building contract for homeowner/occupier.
Can you tell me about PACT in relation to lease renewals
Professional Arbitration on Court Terms form of ADR for lease renewal disputes
What is the role of RICS in dispute resolution?
Provides comprehensive range of dispute resolution services across property construction and land sectors
What RICS guidance are you aware of relating to dispute resolution, ADR, or roles in dispute resolution?
RICS practice guidance on Conflict Avoidance and dispute Resolution in construction
Tell me about your role if you were acting as an expert witness / advocate?
Expert witness - provide service to client but act in accordance with CPR 35 and primary obligation is to the tribunal not client. Must be independent and unbiased.
Advocate - take personal responsibility for conduct and presentation of your clients case and act in clients best interests, advance case by all fair and proper means
What is the difference between the role of expert witness or advocate?
When acting as expert witness primary obligation and duty is to the tribunal or court not to client
How does your duty of care differ in the role of expert witness and advocate?
Expert witness duty of care to act unbiased and impartial to tribunal
Advocate obligation to act in client best interests and present best case to court
What tribunals are you aware of?
Lands chamber in upper tier tribunal
first tier tribunal (property)
leasehold valuation tribunal
When might the Lands Tribunal be involved in a dispute?
property related
What are the differences between conflict avoidance and dispute resolution?
conflict avoidance is about systems and processes to avoid a conflict arising
Dispute resolution is recognising dispute has arisen and finding means to resolve that dispute
Which dispute resolution procedures lead to a binding decision?
Arbitration / Adjudication
Litigation
What is a Scott Schedule and when would one be used?
Means of setting out parties evidence and value of each element - often submitted as evidence in construction disputes
Explain the RICS conflict avoidance pledge to me?
Voluntary commitment by organisation to proactively avoid and manage disputes by using early intervention procedures
What RICS guidance relates to conflicts of interest for dispute resolvers?
RICS professional standard on Conflict of interest for members acting as dispute resolvers
When was the RICS guidance on conflicts of interest for dispute resolvers last updated and what changes were made?
November 2020 #
Don’t know what changes were introduced
Explain the Thomas Killman model to me?
Framework developed in 1970s to explain how individuals respond to conflict.
Categorizes conflict responses based on two dimensions - assertiveness and cooperativeness
What is conflict avoidance?
How can you avoid conflicts in your role?
putting in place processes and procedures to avoid conflict:
- good document management
- clear contract documentation
- partnering and alliancing
- good payment practice
What is conflict management?
What methods can you apply to manage conflicts in your role?
process of identifying addressing and resolving disputes between two or more parties
How do contracts support dispute resolution?
What factors support selection of the appropriate dispute resolution method?
JCT contracts include dispute resolution provisions in section 9
Articles 7-9 Contract Particulars include clarifications
How can you manage claims to avoid conflicts?
What are the contractual requirements for a successful claim?
Managing claims for interim payment and valuation of variations -
Deal with them promptly and fairly, communicate clearly with all parties
