Conflict avoidance, management & dispute resolution procedures

Question 1

What is a Conflict of Interest?

Answer 1

Anything that impedes or may be seen to impede my ability to act impartially and in the best interest of my client.

Question 2

Where might there be a conflict?

Answer 2

• Personal interest or relationship with either party
• Advising on another site in close proximity
• Acting for both sides of the transaction

Question 3

What is negligence?

Answer 3

A breach of a duty of care which results in loss or damage.

Question 4

What precautions can you take to avoid negligence claims?

Answer 4

• Agree the scope of works in the TOE (understand client objectives)
• Check competence and do not act outside (Rules of Conduct 2007)
• Adhere to relevant RICS and statutory guidance
• Detailed file notes
• Keep up to date with market knowledge / undertake CPD
• Cap PII excess.

Question 5

What is the minimum level of PII that your firm must have?

Answer 5

Minimum of £1,000,000 for each and every claim.

Question 6

What level of PII does your company hold?

Answer 6

£5 million for each and every claim.

Question 7

Can you work for free?

Answer 7

Yes, if this was covered under the terms of my company’s PII agreement.

Question 8

What is the minimum length of run off? And how much?

Answer 8

6 years, although the RICS recommends longer. £250k

Question 9

What is your company’s complaint’s handling procedure?

Answer 9

1. I would first try to resolve the complaint myself.
2. However, if I received a formal written complaint I would inform my company’s complaints handling officer
3. They would contact the complainant within 5 days of receiving the complaint detailing our complaint’s handling policy and nominating a reviewer for the complaint, normally my Head of Department
4. The CHO would also inform our insurers and log the complaint in the complaints log
5. The nominated reviewer then considers the complaint and all evidence. They will submit a response to the complainant within 10 days.
6. If the complainant is dissatisfied with the response and a resolution can not be reached, they can refer the complaint to a redress scheme.
7. My company use the RICS Dispute Resolution Service for business to business complaints, and the Property Ombudsman for private individual complaints.

Question 10

If you could not come to a resolution with the complainant, what would the options be?

Answer 10

The options would be litigation or alternative dispute resolution

Question 11

What are the main types of alternative dispute resolution?

Answer 11

1. Mediation – using a neutral mediator to facilitate discussion; the mediator does not decide on or enforce an outcome
2. Arbitration – independent person who assess evidence submitted to them from both sides to come to a legally binding decision; limited right of appeal
3. Independent Expert – appointed by the two parties or by the RICS Dispute Resolution Services; use their expert knowledge and own investigations to make the decision; the decision is not enforceable; they are liable for losses through negligence
4. Ombudsman – use of an organisation who investigates and facilitates resolution of the complaint; not for profit; will review the case within 6 weeks and provide a provisional conclusion after which time the parties have 28 days to reply; max financial penalty awarded is £25,000
5. Adjudication –strict 28 day timescale to come to a legally binding decision but this can be overturned in court; commonly used for construction disputes

Question 12

What do you understand to be the difference between an arbitrator and an independent expert?

Answer 12

An arbitrator considers evidence formally submitted to them in order to come to a legally binding resolution.
An independent expert considers the evidence and uses their expert opinion to make a recommendation, but this is not legally binding.

Question 13

What are the benefits of ADR over litigation?

Answer 13

• Time effective
• Cost effective as less money spent on legal fees
• Decision is made by a surveyor rather than a judge
• Confidentiality

Question 14

What role do the RICS play in dispute resolution?

Answer 14

The RICS Dispute Resolution Service offers alternative dispute resolution services to property and construction industries. They can appoint qualified dispute resolution surveyors to help resolve disputes through various methods including arbitration, mediation and independent expert

Question 15

How do you check for a conflict?

Answer 15

I first consider if any of my colleagues or other teams within my company may be involved with the site or another site which may present a conflict. I also conduct a companywide check using our internal conflict check database. I would save the Conflict Check in the jobs file, along with any follow up correspondence.

Question 16

Give me an example of when you have encountered a conflict in your job?

Answer 16

I was instructed by a client to provide disposal of a development site in Grove Park. A potential personal conflict of my farter being interested in purchasing the site. I notified my client and offered to either step away or manage the process up until the confirmed if they were going to bid

Question 17

If you found a conflict of interest, would you always turn down the instruction?

Answer 17

No. I would consider if accepting the instruction would affect my professional objectivity, and if the conflict could be appropriately managed by putting certain steps in place such as an information barrier, with the written consent of all parties involved.

Question 18

What constitutes an information barrier?

Answer 18

• An information barrier must be robust so that there is no chance of information passing between the two parties.
• The surveyors acting on the two sides must be different and they must be physically separated, with different support teams.
• All information regarding the instruction should be securely stored.
• The compliance officer should be notified and should oversee the instruction.
• Both parties must keep a clear audit trail of the conflict check process and subsequent communication.

Question 19

When acting as an expert witness, who would you have a duty of care to?

Answer 19

I would have an overriding duty of care to the court. I would have to provide a Statement of Truth and confirmation that I will act impartially and objectively.

Question 20

If you were acting as an advocate, who would you have a duty of care to?

Answer 20

My duty of care would be to my client.

Question 21

When you refer work to another company, how would you deal with referral fees?

Answer 21

RICS guidance says that you must be transparent, therefore I would ensure I declare it to all parties.

Question 22

What do the RICS conflicts of interest 2017 suggest?

Answer 22

identifies a conflict of interest and confidentiality, then there is general commentary notes and then supporting commentary notes.

Question 23

What does the RICS complaints handling guidance 2016 suggest

Answer 23

outlines the value of TOE, CHP, PII