Level 1 - Conflict avoidance, management and dispute resolution procedures

Question 1

What RICS publications are there on Conflict of Interest?

Answer 1

RICS Professional standard on Conflict of interest 2017

Question 2

When does a conflict of interest arise?

Answer 2

When a firm’s independence and impartiality are threatened due to a conflict between two clients

Question 3

What are the types of conflicts?

Answer 3

Party conflict – work on the same instruction for two parties.

Personal Own interest – relating to a personal interest.

Confidential information conflict – having confidential information of former client that is material to a current client.

Question 4

What is a personal interest?

Answer 4

Acting for a connected person. e.g. family member, close friend.

Question 5

What options do you when having a conflict?

Answer 5

Decline the instruction - Conflict avoid

Accept instruction, put steps in place to manage the conflict such as information barrier - conflict management

Question 6

What does the RICS Professional Standard, Conflict of Interest 2017, states when you would like to manage a conflict?

Answer 6

Should not provide advice unless receive informed consent from parties that may be affected.

and

Only accept, if is in the best interest to all those who are or may be affected and not prohibited by law.

Question 7

How would you gain informed consent?

Answer 7

Write to all parties that may be affected and receive their informed consent in writing

Need to disclose the type of conflict.

The steps identified to create an information barrier.

Be clear and ensure they understand the risks and inform to seek independent advice.

Ensure to receive consent in writing that you act in accordance with the provision proposed.

Question 8

How should an information barrier operate?

Answer 8

Must be robust enough not to allow any information between parties.

Need for surveyors to be physically separated located i.e. different floors.

All information to be securely stored.

Compliance officers need to oversee all actions.

Question 9

What two choices are there when the CHP has failed to produce a satisfactory outcome?

Answer 9

ADR

Court proceedings

Question 10

What is Litigation/court proceedings?

Answer 10

Taking legal action through the Courts.

Question 11

What is ADR?

Answer 11

ADR stands for Alternative Dispute Resolution - alternative forms of dispute resolution which avoid litigation.

Question 12

What types of Conflict avoidance techniques are there?

Answer 12

Act fairly.

Be competent

Clear and carefully drafted TOE documentation

Good client management - Understanding client objectives.

Record keeping – many projects can be resolved by keeping good records.

Question 13

Why is ADR better than litigation?

Answer 13

Speed, less costly, confidential, quality of decision (made my an expert) and can preserve relationships.

Question 14

What are the different forms of ADR?

Answer 14

Adjudication

Mediation

Arbitration

Expert Determination

Question 15

What is adjudication?

Answer 15

Established by the Housing Grants, Construction and Regeneration Act 1996 (commonly referred to as the Construction Act).

Most common ADR to solve construction contract deputes.

RICS adjudicators are experts in their field.

They will evaluate the evidence submitted by each party and will reach a decision based on the facts of the case.

The adjudicator’s decision is is binding and can be enforced through the Technology and Construction Court.

The decision can be overturned if later determined by litigation or arbitration.

Strict timelines are imposed by the Construction Act which outlines a 28-day procedure for adjudication,

Question 16

What is mediation?

Answer 16

Mediator is neutral and facilitates discussions between two parties.

Confidential and informal on ‘without prejudice’ basis.

Mediator has no decision-making authority.

Question 17

What is without prejudice?

Answer 17

Any statement made verbally or written that will not be admissible in court as evidence against the person making the statement.

Question 18

What RICS publication is there on Mediation?

Answer 18

RICS Guidance Note on Mediation, 1st edition 2014

(Archived)

Question 19

What is Arbitration?

Answer 19

Governed by the Arbitration act 1996.

Arbitrator can only make decisions based on parties’ submission, and decide which party is more persuasive.

The arbitrator’s award is final and binding and directly enforceable in the same way as a court judgment.

Arbitrators cannot be sued for negligence as they are immune.

An appeal can only made on limited grounds (within 28 days) such as on a point of law.

Question 20

What is PACT?

Answer 20

Professional Arbitration on Court Terms is a form of arbitration used for lease renewal disputes.

Question 21

How can a surveyor act as an arbitrator?

Answer 21

Must pass the Chartered Institute of Arbitrators exams.

Question 22

What is Independent Expert Determination?

Answer 22

Governed by the agreement to appoint by the parties.

Expert, can have regard to submission, but conducts their own investigation and decision.

The expert determination is final and binding (if agreed at the outset) but not directly enforceable - If party fails to comply, must sue for breach of contract and obtain a judgement.

No right of appeal against an Independent Expert determination - No legislation that governs expert determination.

Expert can be sued as owes a duty under contract (acted outside of scope) and tortious duty of care (acted in bad faith).

Question 23

What RICS publication is there on independent expert determination?

Answer 23

RICS Professional Standard on Independent Expert Determination, 2016

Question 24

Who is an Independent Expert or Arbitrator appointed by?

Answer 24

Either by the President of the RICS or by the agreement of the parties

Question 25

What service does the RICS provide to resolve conflict?

Answer 25

Dispute resolution service can appoint a mediator, arbitrations, expert determiners, adjudicators and expert witnesses.

Question 26

What is an Expert Witness?

Answer 26

When a surveyor provides evidence to a judicial or quasi-judicial body.

The expert must provide a Statement of Truth and confirmation that they will act impartially and objectively to the body.

Should give an objective and unbiased opinion to matters relating to their experience - they cannot ‘cherry pick’ the details to fit the case.

Question 27

Who is an expert witnesses primary duty of care to?

Answer 27

The court or other dispute resolution panel and not the client, even though the client pays the fee

Question 28

What is ‘hot tubbing’?

Answer 28

The experts appear together in court to exchange views and answer questions from the barristers and the court

Question 29

What RICS publications are there in regards to expert witness?

Answer 29

RICS Professional Statement and guidance note, for Surveyors acting as expert witnesses, 2023

Question 30

What is an advocate?

Answer 30

A surveyor acting for a client as an advocate, represents their client at a judicial hearing/tribunal

They have a duty solely to the instructing client

They must act in a way to maintain the integrity of the judicial process

They must be competent to act in this advocacy role

Question 31

What RICS publications are there in regards to been advocate?

Answer 31

RICS Practice Statement and Guidance Note for Surveyors acting as advocates, 2017