Conflict of Avoidance Flashcards
What is the difference between conflict avoidance and conflict management?
- Conflict avoidance is when you do not accept the instruction.
- Conflict management is where you accept the instruction and steps are agreed and put in place to manage the conflict such as information barrier. A written agreement is required to establish a conflict management.
Assuming that you wish to accept an instruction where a CoI has arisen, what info must you send to clients?
- The nature of the conflict, circumstances and other relevant info
- Proposal for dealing with the conflict - Information barrier
- Request written confirmation (Informed consent) from both clients that your firm can within accordance of the proposed procedure
- Monitor the conflict on a regular basis and notify clients if anything changes
What are some of the steps to try and avoid conflict ?
- Clear, concise and careful drafting of the contract or lease and associated documentation
- Understanding what could go wrong or how misinterpretation between parties might arise
- Managing all parties’ expectations by understanding their objectives and clearly communicating these, as well as implementing ‘early warning systems’, including serving of appropriate notices
- Negotiating contractual obligation carefully and transparently will help to avoid later conflict or at least enable their efficient resolution
- Keeping good records with a sufficient level of detail can often help to resolve conflicts before they escalate
What are the THREE main processes available in resolving disputes?
- Negotiation: problem-solving efforts of the parties themselves
- Mediation or conciliation: third party intervention which does not bind the parties to a decision but assists them to resolve difficulties
- Adjudicative processes: an outcome determined by a third party, such as litigation or arbitration
Name some of the ADRs relevant to your work? and give a brief description.
- Mediation: a trained mediator is appointed to facilitate the discussions with the goal of reaching a solution
- Expert determination: A third party, expert in the subject, is appointed to resolve a dispute
- Arbitration: A third party makes a binding decision on the dispute
can you name some of the advantages of Alternative Dispute Resolution ?
- Speed – takes less time than lengthy court proceedings following the Civil Procedure Rules
- Confidentiality
- Cost – less money spent on professional fees for litigation
- Quality of decision making – as outcome or award can be made by a surveyor rather than a judge
- Informality – outside a court
- Greater opportunity for negotiation
What are dispute handling procedures?
Procedures to handle disputes between parties
What is a dispute?
A disagreement / argument / controversy that can arise from a failure to comply with a contractual obligation that may occur of differing interpretation
Can you give me some characteristics/elements of mediation?
A neutral mediator is used to facilitate discussions.
It is informal and confidential.
Parties are not bound by the decision.
Conducted on a ‘without prejudice’ basis.
RICS Guidance Note ‘Mediation’ 2014.
What does ‘Without Prejudice’ mean?
It’s a term often used in the context of negotiations.
It means that a statement made without prejudice cannot be used as evidence in court, if the negotiation are not successful and end up to court.
It is used to encourage parties to speak freely and make concession in an effort to resolve the dispute, without prejudicing their legal position in the event that the settlement is not reached.
What are ADR?
Alternative Dispute Resolution - processes and techniques that fall outside the scope of court litigation
What are the various forms of DR?
Negotiation
Mediation and Conciliation
Expert Determination
Adjudication
Arbitration
Litigation
What are the characteristics/element of arbitration?
- Arbitrator have specialist knowledge
- They rely on evidence presented by the parties so these are more involved
- Can involve a hearing
- Their decision is binding but the decision can be overruled by the court of Appeal
- Often chose for a making a decision on a broad range of disputes, damages or contractual breaches
- Cannot be sued
What are the characteristics/element of Independent Expert Determination?
- In expert determination a third party is appointed (expert)
- They can review evidence but will often rely on their experience to determine an outcome, so parties have a more limited role
- Decision is based on a written submission so less formal
- Parties are bound by the decision
- Often chose for a making a decision on a particular area (i.e. lease renewal, valuation)
- Can be sued
How are IDE and arbitrators appointed?
They can be appointed by the parties but in some instances of the RICS, the appointment of an expert or arbitrator may be governed by the RICS DRS
