Conflict of Avoidance, Management and Dispute Resolution

Question 1

You have read the RICS Guidance notes on Complaints Handling – how would you deal with a complaint?

Answer 1

This is in regards to residential but provides best practice with regards to importance of good customer service and ways to protect a firm.

Question 2

What are your firms measures for Conflicts of Interest?

Answer 2

Online system – check properties that are registered and those which are finished jobs

Print off a conflict report and sign off

Any confidential jobs you email the compliance officer who has a special system to check details

Question 3

What is a conflict of interest?

Answer 3

Arises when a firms independence and impartiality is threatened due to the existence of a conflict between two clients – e.g. financial, personal interest, acting on both sides of a transaction.

Question 4

What is the difference between conflict avoidance and conflict management?

Answer 4

Conflict avoidance is when you do not accept the instruction

Conflict management is when the instruction is accepted and steps are agreed and put in place to manage the conflict, such as an information / ethical barrier – with written agreement from all of the parties involved

Question 5

Assuming you wish to accept an instruction where a conflict of interest has arisen what information must you send to the clients?

Answer 5

Stage 1 – Conflict Avoidance
• Decide whether you can properly manage the conflict

Stage 2 – Written Advice to Both Parties
• Nature of the client, circumstances and other relevant information
• Proposals for dealing with the conflict – information barrier
• Advise both clients to seek independent professional advice from another surveyor outside the firm before proceeding with the instruction
• Request written confirmation from both clients that your firm can act within accordance of the proposed procedure

Stage 3 – Conflict Management
• Set up information barrier in accordance with provisions agreed with both clients

Question 6

What is an information barrier and how should it be enforced?

Answer 6

• A procedure to ensure there is no chance of information passing between the two parties.
• Different surveyor should act for each client
• They must be physically separated preferably in different buildings or on different floors with separate support teams
• All information regarding the instruction should be securely stored
• The firms compliance officer must oversee all actions

Question 7

What is the role of an expert witness?

Answer 7

• A surveyor provides evidence to a judicial or quasi-judicial body
• RICS updated practice statement for ‘Surveyors acting as expert witnesses 4th edition to reflect outcome of Jones vs Kaney, 2011
• The expert witness’ primary duty of care is to the court or other dispute resolution panel and not the client even though the client pays the fees
• The expert has to provide a statement of truth and confirmation that he will act impartially and objectively to the body.
• Expert should give an objective and unbiased opinion to the matters relating to his experience

Question 8

What is the role of an advocate?

Answer 8

• An advocate is a surveyor acting for a client representing his client at a judicial hearing / tribunal
• He has a duty of care to the judicial body / tribunal to act properly and fairly however his primary duty is to act in the best interest of his client
• He must act in a way to maintain the integrity of the judicial process and be competent in this advocacy role

Question 9

If you have failed to reach an amicable resolution with a party concerning a complaint what other choices do you have?

Answer 9

• Litigation / Court following the Civil procedure rules

* Alternative dispute resolution

Question 10

What are the various forms of ADR used in the UK?

Answer 10

Mediation
• Use of a neutral mediator who facilitates discussions to resolve issue
• No decision making power and cannot impose resolution

Arbitration
• Quasi-judicial role in accordance with the Arbitration Act 1996
• Parties bound by the decision – hearing or written representation

Independent Expert Determination
• Expert of subject of dispute
• Bound by decision – can use own opinion

Adjudication
• Commonly for construction disputes - legally binding
Early Neutral Evaluation

Use of an Ombudsman
• An organisation that investigates and facilitates the resolution of a complaint based on redress not regulation e.g. property ombudsman
• Can reward up to £25,000

Question 11

Where do CBRE refer complaints to externally?

Answer 11

The Centre for Effective Dispute Resolution (CEDR) .