Conflict resolution

Question 1

What are the three pillars of dispute resolution? Who introduced these terms?

Answer 1

Negotiation
Mediation/Conciliation
Adjudicative process

Professor Green of Boston University

Question 2

Give examples of each.

Answer 2

Negotiation - Written or face to face
Mediation/Conciliation - 3rd party resolution
Adjudicative process - Court proceedings

Question 3

How do mediation and conciliation differ globally? Why is this important to be aware of?

Answer 3

In some countries mediation and conciliation lead to a binding award.

This can affect how open you are in the process

Question 4

What is Alternative Dispute Resolution (ADR)?

Answer 4

Alternatives to litigation and arbitration

Faster and more economical

Question 5

Why might you prefer to pursue ADR rather than litigation through the Courts?

Answer 5

Court fees
Time implication
Maintain business relationship
Flexibilty
Confidentiality

Question 6

What is the practice of dual agency/double dipping?

Answer 6

Representing both the seller and buyer

Question 7

Can you tell me about any recent RICS guidance relating to dual agency/double dipping?

Answer 7

banned from 1st Jan 2018

Question 8

What is the difference between an arbitrator and an independent expert? Can you tell me about any other types of ADR?

Answer 8

Arbitrator - not own facts, can be appealed, independent expert - own facts and conclusions, can be sued.

Mediation - confidential and informal.
GM mediation 2014

Question 9

Can you tell me about mediation/conciliation/adjudication? What is the TCC and what is their role?

Answer 9

Mediation - Will not impose a binding decision
Conciliation - will not impose view but assists settlement
Adjudication -Makes a binding decision (litigation)

Question 10

Explain the role of the CPRs.

Answer 10

CPRs prohibit unfair business to consumer commercial practices

Question 11

What governs dispute resolution during insolvency or bankruptcy proceedings?

Answer 11

Insolvency Act 1986.

Question 12

What is a Dispute Adjudication Board (DAB) Dispute review boards (DRB)?

Answer 12

+ Dispute review boards (DRB) make
recommendations rather than binding decisions.
+ Dispute adjudication boards (DAB) make a
binding decision about any dispute referred to
it

Question 13

Can you tell me about PACT in relation to lease renewals?

Answer 13

ADR service to court
In court PACT - unopposed new tenancy that one party has made an application
Out of court PACT - No court application from either party

Agreed points and to be decided
Consent order
Arbitrator nominated
Decision is binding to both parties

Question 14

What is the role of RICS in dispute resolution?

Answer 14

RICS offers:

ADR
Guidance on Mediation
Guidance on conflict of interest
PACT

Question 15

What RICS guidance are you aware of relating to dispute resolution, ADR or roles in dispute resolution?

Answer 15

ADR - 3rd party resolution
Guidance on Mediation
RICS Conflicts of Interest, 2017,
PACT
Conflict avoidance procedure
RICS Dispute Resolution Service (DRS).
Professional Statement Surveyors acting as expert witnesses 2014, amended 2020
Professional Statement 'Surveyors Acting as Advocates', 2017

Question 16

Tell me about your role if you were acting as an expert witness/advocate. What is the difference between the two?

Answer 16

Expert witness -
Providing expert advice in a case
Duty of care is to the court or DR panel
Objective and Unbiased opinion

Advocate
Represents client in a judicial hearing
Duty of care is solely to the client

Question 17

How does your duty of care differ in the two roles? What tribunals are you aware of?

Answer 17

Expert witness -
Duty of care is to the court or DR panel

Advocate
Duty of care is solely to the client

Trubunals
Valuation Tribunal
Regulatory tribunal

Question 18

When might the Lands Tribunal be involved in a dispute?

Answer 18

In cases in relation to land - ie
Ransom strip
Stokes V Cambridge 1961 -
When the value of 1/3 the uplift in development site value was awarded to the owner of the ransom strip.

Question 19

What are the differences between conflict avoidance and dispute resolution? Which dispute resolution procedures lead to a binding decision?

Answer 19

Conflict avoidance is when you do not accept the instruction
Dispute resolution - Resolve the ongoing dispute.
Avoidance can help dispute.

Litigation, arbitration, Independent expert

Question 20

What is a Scott Schedule and when would one be used?

Answer 20

Scotts schedule-
Spreadsheet-type format
The lease references & interpretations,
Parts of the premises - works required to meet obligations and costs.

Question 21

What RICS guidance relates to conflicts of interest for dispute resolvers? When was this last updated and what changes were made?

Answer 21

RICS Guidance Note on Conflicts of Interest for Members acting as Dispute Resolvers
2017

2nd edition, November 2020
Effective from 1 February 2021

Introduced a traffic light approach, providing examples on potential conflicts of interests
Red -Clear conflict
Orange - Make decision with caution
Green - No possible conflict

Question 22

What is a conflict?

Answer 22

be incompatible or at variance; clash.

Question 23

When do disputes arise in your role?

Answer 23

Disputes arise in resolving rent reviews amicably .

Question 24

What can you do if negotiations break down? What is a conflict of interest?

Answer 24

Seek to go through the steps of conflict avoidance and dispute resolutions.
Managing expectations

Negotiation
Mediation
Arbitration/IE determination
Calder bank offers

COI - Loss of independence and impartiality caused by:
Any financial interest
A personal interest ,•
Commercial relationships
Acting on both sides of a transaction

Question 25

What does the RICS Rules of Conduct (for Firms/Members) say about avoiding conflicts of interest?

Answer 25

Ethical behaviors -act with integrity and avoid any conflicts of interest.

Question 26

Give examples of ways that conflict can be avoided.

Answer 26

Clear and conscises drafting of contracts
Conflict avoidance risk analysis
Implementing systems to manage expectatioms
Transparency
Keeping good records

Question 27

What are the benefits of clear contract documentation? What is partnering or alliancing?

Answer 27

Reduces the possibility or misunderstanding and future disputes

Building co-operation between the project participants

Question 28

Give examples of good payment practices. How can good record keeping avoid conflict?

Answer 28

Paying invoices as soon as services or products are delivered.
Good clear communication around timescales

To clarify events that could be in dispute

Question 29

How do reporting and proactivity reduce conflict?

Answer 29

Manages the clients expectations and catches potential disputes early on