Subs: Conflict Avoidance, Management & Dispute Resolution Procedures

Question 1

What can you do to try and avoid conflict?

Answer 1

• Clear, concise and careful drafting of the contract or lease and associated documentation
• Understanding what could go wrong or how misinterpretation between parties might arise
• Managing all parties’ expectations by understanding their objectives and clearly communicating these, as well as implementing ‘early warning systems’, including serving of appropriate notices
• Negotiating contractual obligation carefully and transparently will help to avoid later conflict or at least enable their efficient resolution
• Keeping good records with a sufficient level of detail can often help to resolve conflicts before they escalate

Question 2

What are the THREE main processes available in resolving disputes?

Answer 2

• Negotiation: problem-solving efforts of the parties themselves
• Mediation or conciliation: third party intervention which does not bind the parties to a decision but assists them to resolve difficulties
• Adjudicative processes: an outcome determined by a third party, such as litigation or arbitration

Question 3

What is mediation?

Answer 3

• Neutral mediator who facilitates discussions between the two parties to explore whether a solution can be found
• A confidential and informal process
• Mediation is usually conducted on a ‘without prejudice’ basis
• Mediator has no decision-making authority and cannot impose a resolution upon the two parties
• RICS Guidance Note on Mediation, 2014

Question 4

What is arbitration?

Answer 4

• Arbitrator appointed in a quasi-judicial role in accordance with the Arbitration Act 1996
• Parties are bound by the decision
• Can order a hearing or consider written representations
• Will have specialist knowledge in the subject area
• Cannot be sued for negligence but their decision can be over-ruled by the Court of appeal on a point of law only
• Offers a fast, cost effective and confidential solution to a dispute
• Surveyors can act as an arbitrator having passed the Chartered
• Institute of Arbitrators exams

Question 5

What form of arbitration can be used for lease renewal disputes?

Answer 5

PACT (Professional Arbitration on Court Terms)

Question 6

What is conflict avoidance?

Answer 6

Conflict avoidance is when you do not accept the instruction

Question 7

What is conflict management?

Answer 7

Conflict management is when the instruction is accepted, and steps are agreed and put in place to manage the conflict, such as an information/ethical barrier, with the written agreement of all parties.

Question 8

What are the three levels of disciplinary action?

Answer 8

1) Action by Head of Regulation
2) Regulatory Tribunal
3) Appeal Panel

Question 9

Once an investigation is complete, if found guilty, what four actions could the Head of Regulation initiate as disciplinary action?

Answer 9

1. Serve a Fixed Penalty Notice.
2. Make a Regulatory Compliance Order.
3. Refer the matter to a single member of the Regulatory Tribunal for consideration.
4. Refer the matter directly to a Disciplinary Panel.

Question 10

Tell me about a Regulatory Tribunal Disciplinary Panel?

Answer 10

• The procedure is used in the case of serious breaches of conduct.
• The panel can include non-RICS members.
• Penalties can include:
  1. Issue a Regulatory Compliance Order.
  2. Impose an unlimited amount of fine per breach but it must be proportionate to the offence
  3. Impose conditions upon future continued RICS registration
  4. Expulsion from membership or remove a firm
  5. Require publication of the results of the hearing