Mandatory - Conflict Avoidance, Management and Dispute Resolution Procedures

Question 1

How can you avoid conflict in the first place?

Answer 1

State in the tender/ contract documents what is required between all parties.
Maintain good, open communication.
Put everything in writing to provide documented evidence.
Follow company procedures and policies.
Follow RICS standards, professional statements and guidance.

Question 2

If conflict occurs, how do you deal with it initially?

Answer 2

Raise the issue with all parties and try to resolve through negotiation and communication.
A face to face meeting usually helps.

Question 3

What could indicate the success of a final account negotiation?

Answer 3

All parties come away happy.
Costs agreed within client’s budget.
Issues resolved in a timely manner.

Question 4

What is the cause of most disputes?

Answer 4

Commercial aspects.
Unclear or conflicting information or instructions.
People working under too much pressure.
Insufficient detail in the contracts.
Unclear scope of service.

Question 5

What can I do if a negotiation breaks down?

Answer 5

Try using an Alternative Dispute Resolution.

Question 6

What is dispute resolution?

Answer 6

Several process that can be used to resolve a disagreement or conflict.

Question 7

What does ADR stand for?

Answer 7

Alternative Dispute Resolution.

Question 8

What are the main forms of ADR?

Answer 8

Negotiation
Mediation
Adjudication

Question 9

What is the TCC?

Answer 9

Technology and Construction Court. Handles building, engineering and surveying disputes – usually for projects £250k and over.

Question 10

What is negotiation?

Answer 10

Process whereby the disagreeing parties come to a resolution of their own accord. Suitable for simple matters that are easily resolvable and where compromises can be accommodated. The negotiation ends when both parties cooperate and come to and agreement.

Question 11

What is mediation?

Answer 11

The disagreeing parties agree to use an impartial third party to facilitate discussions with the goal of reaching a settlement. The disagreeing parties have to agree to settle, but the process is led by a mediator. The process is non-binding and the mediator does not award a winning party. Both parties have to volunteer to take part but the process can be started by either party.

Question 12

What is conciliation?

Answer 12

Similar to mediation but the conciliator will set out their solution to the problem. If neither party disputes their recommendation, then it becomes binding.

Question 13

What is the difference between a mediator and a conciliator?

Answer 13

The conciliator is more involved in the process and can offer solutions and make recommendations to resolve the problem. The mediator only facilitates discussions.

Question 14

What is an expert witness?

Answer 14

A persons whose experience and knowledge in a particular field is beyond what is expected of a layman. They make their knowledge available to courts or bodies to help them understand the problem and reach a fair decision.

Question 15

What is expert determination?

Answer 15

Both parties agree to refer their problem to an independent expert, who will review the evidence and make a binding decision. The disagreeing parties must agree who that expert will be. Simpler and cheaper than arbitration or litigation.

Question 16

What are the advantages of expert determination?

Answer 16

Confidential procedure that is less adversarial and helps parties maintain a working relationship.
Cost and time efficient solution for resolving disputes.
Procedure is controlled by the parties rather than a court.
An expert can be found that specialises in whatever the specific problem is.

Question 17

What is adjudication?

Answer 17

An ADR method to help prevent litigation. Offers a faster method of dispute resolution so that parties can continue working together.

Question 18

How does the adjudication process work?

Answer 18

Either party can serve the other with a notice that they are referring a dispute to adjudication.

Within 7 days of the referring party issuing the notice, they must provide the other party with their referral (statement of the case). If it’s not served within those 7 days then the adjudication is void. The referral must contain a detailed explanation of the issue and supporting documentation. The referring party must then appoint the adjudicator as stated in the contract.

The Adjudicator will then set out a timetable and allow for the other party to respond to the referral.

The Adjudicator must make their decision within 28 days of the Referral. This can be extended to 42 days if both parties agree.

The decision of the adjudicator is binding, unless the adjudicator acted outside their jurisdiction or proved bias to one party.

Question 19

Can you appeal an adjudication?

Answer 19

No – the next step is litigation.

Question 20

What if the contract does not contain a provision for adjudication?

Answer 20

Adjudication is a legal right under the Construction Act.

Question 21

Who pays for adjudication?

Answer 21

Both parties pay the adjudicators fees. The adjudicator will usually decide who then pays the fees and relevant expenses.

Question 22

What is arbitration?

Answer 22

A lawsuit without the courts involvement.
Both parties agree to send their despite to arbitration rather than pursuing it through a court.
The arbitrators decision is legally binding on all parties.

Question 23

What are the advantages of arbitration?

Answer 23

Private process with no public record.
Faster than litigation.
The parties agree on who is appointed arbitrator.
Arbitrators decision can be enforced as a judgement of the court.

Question 24

What are the disadvantages of arbitration?

Answer 24

Both parties must bear the cost of the arbitrator and the venue.
Limited appeals rights.
Arbitration is uneconomical if the amount of money in dispute is relatively modest.

Question 25

What is litigation?

Answer 25

One party commences a claim through the civil courts.

Question 26

What are the advantages of litigation?

Answer 26

Judges can compel parties to comply and have powers of sanctions against those who do not.
The judge can make one party provide interim relief to the other to protect their position.
There are defined rights of appeal in cases where errors have been made.

Question 27

What are the disadvantages of litigation?

Answer 27

Greater cost.
Lengthy.
Public records.
Judgement can then be taken to appeal.

Question 28

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

Answer 28

Act with integrity and avoid conflicts of interest and avoid any actions or situations that are inconsistent with its professional obligations.’

Question 29

What is the role of RICS in dispute resolution?

Answer 29

Provide services across all sectors of land, property and built environment.
Independent experts / mediators / adjudicators, arbitrators