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APC Mandatory - Conflict avoidance Flashcards

Conflict avoidance

1
Q

What is a conflict?

A

A disagreement

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2
Q

When do disputes arise in your role?

A

If you do not meet the terms of engagement or are negligent.

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3
Q

What can you do if negotiations break down?

A

Use a dispute resolution.

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4
Q

What is a conflict of interest?

A

Where judgement may be affected by personal or business relationships (ethical matters)

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5
Q

What do the RICS Rules of Conduct say about avoiding conflicts of interest?

A

An RICS member or regulated firm must not advise or represent a client where doing so would involve a Conflict of Interest.

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6
Q

Give examples of ways that conflict can be avoided.

A

Have systems in place to prevent a COI, Disclosure COI when they occur and management,

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7
Q

Why is good management important?

A

It prevents a potential COI from arising e.g., early warning systems.

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8
Q

What are the benefits of clear contract documentation?

A

It leaves no ambiguity

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9
Q

What is partnering or alliancing?

A

Colloborative manangement to manage risk.

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10
Q

Why is good project or instruction management important?

A

It sets up the clear objectives

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11
Q

How can good client management reduce conflict?

A

By identifying potential COI and having systems in place to manage or address these.

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12
Q

Give examples of good payment practices.

A

Fair pay and paid within the agreed terms.

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13
Q

How can good record keeping avoid conflict?

A

It allows you check previous jobs which can highlight early warning for potential conflicts.

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14
Q

How do reporting and proactivity reduce conflict?

A

It allows you to remain upto date with any changes which could cause a conflict.

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15
Q

What are the three pillars of dispute resolution? Who introduced these terms? Give examples of each.

A

Negotiation (fact finding), Mediation (conciliation) and adjudication (Ombudsmen). The RICS introduced these terms.

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16
Q

How do mediation and conciliation differ globally? Why is this important to be aware of?

A

Mediation is an alternative form of dispute resolution and is supported by an unbiased third-party mediator. With conciliation, the conciliator will play an advisory role and may intervene in order to offer feasible solutions to both parties and help settle their disputes

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17
Q

What is Alternative Dispute Resolution (ADR)?

A

Different ways to resolve disputes without a trial.

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18
Q

Why might you prefer to pursue ADR rather than litigation through the Courts?

A

Cheaper and quicker.

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19
Q

Tell me about a conflict of interest check you have carried out.

A

When undertaking new instructions, we check the CMS systems to check previous involvement with the client, vendor or property.

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20
Q

What would you do if you identified a perceived/actual conflict of interest?

A

Disclose it and identify level of conflict and manage or refuse an instruction if needed.

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21
Q

Can you tell me about any RICS guidance relating to conflicts of interest?

A

RICS Professional Statement Ð Conflicts of interest 2017

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22
Q

What is the practice of dual agency/double dipping?

A

Acting for multiple parties.

23
Q

Can you tell me about any recent RICS guidance relating to dual agency/double dipping?

A

Must not be undertaken under any circumstances

24
Q

What is the difference between an arbitrator and an independent expert?

A

The independent expert’s decision, known usually as a ÒdeterminationÓ is usually stated to be final and binding. Unlike arbitration, the independent expert does not, unless the terms of his/her appointment provide otherwise, have the power to determine who pays the costs.

25
Q

Can you tell me about any other types of ADR?

A

Mediation, conciliation, adjudication, expert wintess, RICS DRS, CEDR

26
Q

Can you tell me about mediation/conciliation/adjudication?

A

Mediation is an impartial third party assisting with the dispute. Conciliation involves both parties agreeing for a conciliator to help the parties reach an agreement. Adjudication is a judge or arbitrator determining a decision.

27
Q

What is the Technology & Construction Court and what is its role?

A

A specialist court, which deals principally with technology and construction disputes

28
Q

If you work with contracts, explain how dispute resolution works in a contract you have worked with.

A

Construction contracts usually provide for disputes to be dealt with by agreed dispute resolution procedures involving mediation, adjudication and arbitration. E.g., the joint contracts tribunal.

29
Q

Explain the role of the Civil Procedure Rules (CPRs).

A

The CPR were designed to improve access to justice by making legal proceedings cheaper, quicker, and easier to understand for non-lawyers.

30
Q

What governs dispute resolution during insolvency or bankruptcy proceedings?

A

The Insolvency Act 1986

31
Q

What is a Dispute Review or Recommendation Board (DRB)? How does this process work?

A

DRBs provide a confidential forum in which difficulties or disputes can be resolved. It works by having rules to comply with which are binding.

32
Q

What are the relevant timescales for adjudication?

A

28 days from the appointment

33
Q

Which Act governs adjudication?

A

Construction Act 1996.

34
Q

What is the basic principle of adjudication?

A

The adjudicator’s decision is binding and enforceable unless and until the dispute is resolved by litigation/arbitration or by agreement of the parties.

35
Q

What claims is adjudication appropriate for?

A

Delay or disruption of works, time extensions, delay of payment etc.

36
Q

What is the aim of adjudication?

A

Adjudication describes the legal process that helps expedite and deliver a court’s resolution regarding an issue between two parties.

37
Q

Explain the various adjudication services provided by RICS.

A

Construction, summary, low value dispute, homeowner adjudication.

38
Q

Explain the impact of the Housing Grants Construction and Regeneration Act 1996 (Construction Act) on dispute resolution and construction contracts. What timeframe is relevant under this?

A

It increases clarity to payment, introducing fairer payment regimes and improved rights and makes adjudication more accessible in relation to construction contractors entered after October 2011.

39
Q

Explain what the role of the RICS Low Value Dispute Adjudication service is. What level of claim can this service be used for? What makes this process cost effective?

A

For SMEs to resolve disputes of claims less than £50,000 where the RICS will nominate an adjudicator. The cost is £300.

40
Q

How does homeowner adjudication work under the Construction Act?

A

Unless both parties agree, Construction Act adjudication does not apply automatically to a contract where one party is a residential occupier and the contract works have been carried out on their home.

41
Q

Can you tell me about PACT in relation to lease renewals?

A

PACT is a process where the determination of all or some of the terms of a renewal lease is (with the consent of both parties) delegated to an independent third party who may act either as an arbitrator or as an independent expert.

42
Q

What is the role of RICS in dispute resolution?

A

Alternative Dispute Resolution (ADR) is a way of resolving disputes between clients and RICS-regulated firms that usually avoids having to go to Court.

43
Q

What RICS guidance are you aware of relating to dispute resolution, ADR or roles in dispute resolution?

A

Conflict avoidance and dispute resolution in construction 2012 and Complaints Handling 2016.

44
Q

Tell me about your role if you were acting as an expert witness/advocate. What is the difference between the two? How does your duty of care differ in the two roles?

A

An expert’s role is to assist the Court and give independent, objective evidence which is not compatible with advocacy. An advocate is appointed to present a case for a client using argument.

45
Q

What tribunals are you aware of?

A

First Tier, Valuation, regulatory, land.

46
Q

When might the Lands Tribunal be involved in a dispute?

A

Party wall matters.

47
Q

What are the differences between conflict avoidance and dispute resolution?

A

Conflict avoidance is managing risk. Dispute resolution is dealing with a dispute.

48
Q

Which dispute resolution procedures lead to a binding decision?

A

Arbitration.

49
Q

What is a Scott Schedule and when would one be used?

A

A Scott Schedule is a schedule or table which is used in court proceedings in order to clearly set out the allegations which are in dispute. They are used at the end of a lease.

50
Q

Explain the RICS conflict avoidance pledge to me.

A

Commit to working proactively to avoid conflict and to facilitate early resolution of potential disputes.

51
Q

What RICS guidance relates to conflicts of interest for dispute resolvers? When was this last updated and what changes were made?

A

Conflicts of Interest for Members Acting as Dispute Resolvers 2012 it seeks to inform the disputing parties and others involved in the winder process.

52
Q

How has dispute resolution in the property and construction industries been used effectively during Covid-19?

A

There has been an increase in fraud, disputes and delays.

53
Q

Explain the proposed provisions of the Commercial Rent (Coronavirus) Bill.

A

A Bill To make provision enabling relief from payment of certain rent debts under business tenancies adversely affected by coronavirus to be available through arbitration; and for connected purposes.

54
Q

What form of ADR will be used to recover commercial rent arrears due to Covid?

A

Commercial Rent Bill 2022.

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