Mandatory - Conflict Avoidance, Management, and Dispute Resolution (L1) - done

Question 1

What is a conflict?

Answer 1

A disagreement or dispute between two or more parties

Question 2

What is conflict avoidance?

Answer 2

Not acting if a conflict exists and cannot be successfully managed

Question 3

How can you avoid conflicts?

Answer 3

1. Decline instructions
2. Carry out conflict of interest checks
3. Careful drafting of contracts/engagement notices
4. Manage expectations
5. Keep good records
6. Clear communication

Question 4

What is conflict management?

Answer 4

Use of skills, processes and tools to find ways to manage a dispute e.g. remaining professional

Where you accept an instruction and provisions have been put in place to manage the conflict, i.e. with an information barrier, and the clients have provided informed consent.

Question 5

What are information barriers to manage conflicts

Answer 5

Ensuring no information is shared between teams acting, e.g. separate filing, no discussions

Question 6

What are physical barriers to managing conflict of interest?

Answer 6

For example, physical team separation, sitting on a different floor

Question 7

What is dispute resolution?

Answer 7

Resoution of a disagreement between two or more parties, such as negotiation or litigation

Question 8

What are the three main processes to avoid disputes?

Answer 8

1. Negotiation (Parties involved working it out)
2. Mediation / Reconciliation (Third party intervention that doesn’t bind parties to a decision but assists the resolution)
3. Adjunctive Process: An Outcome is determined by a third party, such as litigation or arbitration.

Question 9

What is Alternative Dispute Resolution (ADR)

Answer 9

Dispute resolution processes that fall outside the scope of the court

Question 10

What are the advantages and disadvantages of ADR?

Answer 10

Advantages
* Confidential
* Less costly
* More efficient

Disadvantages
* Both parties need to agree
* Can delay court proceedings if not resolved

Question 11

You are familiar with the RICS Dispute Resolution Service, can you tell me about this?

Answer 11

RICS provides ADR for land, property and construction industry, and training for ADR. Includes services such as, mediation, arbitration, expert witness referall

Question 12

What are some examples of ADR?

Answer 12

• Arbitration - arbitrator acts according to statute to decide a dispute, has specialist knowledge and highly trained. decision is binding and has power to award costs. can’t be sued for negligence but can appeal decision
• Mediation - neutral mediator facilitates a discussion. not binding on parties and is conducted on a ‘without prejudice’ basis
• Independent Expert: appointed on agreement of parties (in contract), highly trained and has duty to make their own investigations and use specialist knowledge to make determination which can be binding. power to award costs but depends on contract between parties
• Expert Witness: surveyor can be called as a witness in front of a tribunal

Question 13

What exams do surveyors have to pass to become an Arbitrator?

Answer 13

They need to qualify and pass the Chartered Institute for Arbitrators Exams.

Question 14

Can you tell me about an expert witness?

Answer 14

RICS surveyor can be called as an expert witness to a tribunal, but can only act if they have the specialist knowledge, experience, appropriate qualifications and no conflicts.

Question 15

What document has the RICS published on Independent Experts?

Answer 15

The RICS Guidance Note on Independent Expert Determination, 2016.

Question 16

What Document Has the RICS Published on Surveyors Acting as Expert Witnesses? And what is important to consider when acting in such a way?

Answer 16

RICS Practice Statement (Mandatory) Surveyors Acting as Expert Witnesses (2014)

The primary duty of care is to the Court or other dispute resolution panel, not to the Client, even though the client pays your fee.

Incentive fees are therefore not appropriate for a surveyor acting as an expert witness.

Question 17

What does it mean for surveyor to act as an Advocate?

Answer 17

It means that they are representing their client at a dispute resolution hearing or court hearing. Here they have a duty solely to the client, but are obliged to ensure that the integrity of the court and judicial process is respected.

Question 18

What is your firms Complaints Handling Procedure?

Answer 18

Notify PII Insurer as soon as complaint comes in
* Must be in writing and acknowledge the complaint within 2 days.
* Step 1: In-house - notify the deal director in writing/phone, and notify the engagement director (head of team/business line) and investigate complaint within 15 days
* Step 2: Legal & Compliance - if not satisfied with outcome, refer to Legal & Compliance. Nominated person will investigate and respond within 8 weeks of original complaint
* Step 3: 3rd party ADR: refer to the Property Ombudsman.

Question 19

What is the RICS Guidance for Complaints?

Answer 19

RICS Guidance Note Complaints Handling 2016

Question 20

What is the RICS Complaints Handling Procedure?

Answer 20

Notify PII insurer as soon as complaint comes in.
Step 1: In-House - nominated person investigates, will be in writing, acknowledge complaint within 7 days and respond in 28 days
Step 2: ADR refer to 3rd party for resolution who will investigate the complaint

Question 21

How do firms comply with the RICS Guidance Note on Complaints Handling (2016)

Answer 21

Their complaints handling policy must be stated in the terms of engagement, and policy must be approved by the RICS