Conflicts, Management and Dispute - Summary of Experience Flashcards
Tell me about a conflicts of interest check you have undertaken?
Property sale (144-146)
1) Checked property databases to see if we had previous involvement
2) Nothing held - assumed no conflict
3) If there was I would discuss with partner and submitted for a board review
What ADR does your firm use?
- Centre for effective dispute resolution
- Property redress scheme
- PACT
How expensive is RICS dispute resolution?
L and T (£510 each) -This is capped
How do you report a conflict of interest?
Raise with partner / conflict of interest advisory board
Can you tell me how you would effectively avoid conflict?
Due diligence
How do RICS guidelines relating to service charges ensure conflicts are avoided?
- Timely issue of budgets and YE certificates - reduces causes of dispute
- Strong guidance for LL and PMs regarding setting of budgets
- Uniformity and best practice
- Mandatory obligations
Can you talk me through the key guidelines part of RICS service charges in commercial property?
- Budgets issued to occupiers 1 month prior to start of year
- Expenditure within 4 months - Reviewed independently
- Clarity on costs that can/can’t be recovered
- Basis and method of apportionment is to be fair
Can you take me through the steps to ensure budgets and reconciliations are issued in these timeframes, and how this ensures conflicts are avoided?
Steps to setting budget
1) Collate costs
2) Input into excel document + RICS
3) Seek line manager approval
4) Collate RICS budget/CIF into PDF - Client approval
5) Raise make actual w/ accounts
What is arbitration?
ADR - Resolves a dispute outside of the courts
What is litigation?
Not ADR - Taking issue to court to resolve
What is adjudication?
Simplified arbitration
- UK statutory dispute resolution procedure
- Binding until dispute determined by litigation/arbitration
- Usually used in construction disputes
- Takes 28 days usually
What is mediation?
ADR - Brings in separate impartial party to guide a decision based on both parties needs (BOTH COMPROMISE)
What is PACT?
Professional Arbitration on Court Terms
What are the benefits of using PACT?
- Speed (compared to court)
- Expertise (have expert knowledge0
- Flexibility (tailored to needs)
- Privacy (protect sensitive info)
Why was PACT set up?
Alternative to litigation
- Flexible
- Speed
- Experts
- Cheap
What is an independent expert?
A party that is governed by the terms of the lease
- use knowledge and experience to arrive at their determination
- Decision final and binding
- Impartial
What is an expert witness?
A party appointed by the court who uses their knowledge and experience and is unbiased
- Acting as an expert witness overrides any contractual duty to your client
Difference between independent expert and expert witness?
Expert witness is appointed by the court.
Difference between an arbitrator and independent expert?
Arbitrator
- governed by Arbitration Act 1996
- Award is between 2 offers
- Cannot be sued for negligence (if acted in bad faith)
- Reasoned award must be given by arbitrator unless agreed
Independent expert
- Governed by lease
- Use own knowledge to determine rent
- No right of appeal
- Can be sued for negligence
When did RICS conflicts of interest come effective?
1 Jan 2018
Tell me something about RICS conflict of interest
- Every member must identify and manage conflicts of interest
- Keep records of decisions made
What would you do if a conflict had arisen?
- Withdraw/stop acting - Disclose conflict and submit to partner in charge
- Board make decision if you can proceed
- If you can proceed, disclose to client and receive approval to continue
When did RICS service charges in commercial property come effective?
April 2019
What are the benefits of pro-active management and how can it settle disputes?
- Anticipate problems before they arrive
- Shows good attitude to help solving
Why would you use mediation over litigation?
- Flexible
- Cheap
- Quicker
What are the 3 formal forms of ADR?
- Arbitration
- Independent expert - 3rd Party determination
- Adjudication
Informal forms of ADR?
- Mediation
- Negotiation
Can you name some RICS approved forms of ADR?
- Arbitration (PACT)
- RICS Dispute Resolution Scheme
- Property ombudsman
What ADR does your firm use?
- Centre for effective dispute resolution
- Property redress scheme
Tell me about a complaint you have handled?
Never received one
What is the difference between arbitration and litigation?
Arbitration = governed by Arbitration Act 1995 (outside court)
Litigation = Matter is settled within court
How would you use RICS dispute resolution?
Fill out a form - Double check details
What is the property redress scheme?
Allows tenants to escalate a dispute that can’t be resolved between yourselves
What is a property ombudsman?
Provides redress to consumers - considered case by case
What is the centre for effective dispute resolution?
A form of alternative dispute resolution whereby a business or individual can speak to a case adviser who provides advance and can recommend an accredited mediator to resolve dispute. Can also provide adjudication and arbitration processes
What is informed consent?
Occurs when a party who might be adversely affected by conflict of interest acknowledges it but still agrees to instruct RICS regulated firm/member to proceed
What is Workman’s complaints handling procedure?
Acknowledge complaint within 7 days, investigate within 28 days (if can’t resolve, redress scheme or property ombudsman)
Do you know any RICS guidance relating to expert witness?
RICS practice statement and guidance note: Surveyors acting as expert witnesses, 4th ed, Feb 2023
- Explains need for clear instructions and TOE, outlines written report format, and clarifies differences between roles of expert and advocate
What is conciliation?
an impartial 3rd party that helps to reach a resolution of disputes (They can intervene and persuade you to reach agreement based on their evaluations)
What are the dispute boards?
RICS DRS is a division that provides ADR for firms
What are the 3 pillars of dispute resolution?
1) Negotiation (problem solving of the parties themselves)
2) Mediation/Conciliation (third party intervention - not binding)
3) Adjudicative process (third party decision binding)
