7 - Conflict avoidance, management and dispute resolution procedures Flashcards
(41 cards)
What is a conflict?
- A disagreement or struggle between ideas, purposes or interests
When do disputes arise in your role?
Financially
* Agreeing the order value
* Valuation submissions
* Settlement of the final account
What can you do if negotiations break down?
ADR methods such as mediation or adjudication
What is a conflict of interest?
Anything that affects an individual or firms ability to act impartial and in the best interest of a client
What do the RICS Rules of Conduct say about avoiding conflicts of interest
- Identify actual and potential conflicts of interest
- Do not provide advice or service where a conflict of interest, or significant risk of one arises, unless done so in accordance with the professional statement
- Firms to have effective processes to identify conflicts or interest, and enable appropriate decision making whether to accept work
- Firms have record keeping procedures for decision making re. conflicts of interest
Give examples of ways that conflict can be avoided
- The best way is to keep communication clear and constant so that all parties understand what it is that is going on and when there is a dispute, it can be effectively addressed in a fair way.
- Good Management
- Clear Contract Documentation
- Partnering and Alliancing
- Good Payment Practice
- Record Keeping
- Regular reporting and proactivity
Why is good management important?
Fosters an encouraging and productive work environment, bringing the best out of your team.
Positive workplace = Improved morale = less conflict
What are the benefits of clear contract documents?
- Clarity
- Understanding, reduced risk of misinterpretation/mis-understanding
- People are less likely to skim over, more likely to pay attention and digest
What is partnering or alliancing?
- Working alongside another organisation to reach a mutual goal
- Mutual objectives
- Work together = continuously improving, and working together/collectively to resolve dispute
Why is good project or instruction management important?
- Avoid miscommunication or misunderstanding
- Ensure everyone is on the same page, that expectations and objectives are understand
- Gives focus and direction
- Aligned
- Clear actions
- Reduce confusion and uncertainty
How can good client management reduce conflict?
- Transparency and honesty - manage expectations
- Avoid misunderstanding
- Ensures all are fully understood
- Shows you are taking responsibility
- Positivie management = builds trust
- Communicate expectations and intentions
- Work together
Give examples of good payment practices
- Pay on time i.e. in line with contract docs
- Pay what it owed
- Communicate, in good time, any discrepencies
- Authorisation and recording process
How can good record keeping avoid conflict
- Can support your version of events
- Written record of progress, actions etc.
- Many disputes can be resolved by retrospectively considering records that have
been kept during the course of the procurement or the carrying out of a project, record changes and impact on project
How can good record keeping avoid conflict
- Can support your version of events
- Written record of progress, actions etc.
- Many disputes can be resolved by retrospectively considering records that have
been kept during the course of the procurement or the carrying out of a project, record changes and impact on project
How do reporting and proactivity reduce conflict?
- proactively managing all aspects of time, money and risk associated with the project.
- The regular monitoring of cost, progress and quality is important for the success of any project. Enables you to raise and manage any issues that are causing delay, any increases in cost or quality problems as soon as is practically possible. Any actions should be recorded so that they can be tracked towards conclusion.
What are the 3 pillars of dispute resolution?
- Negotiation
- Mediation
- Adjudication
How introduced negotiation, mediation, arbitration as the 3 pillars of dispute resolution?
Professor Green of Boston University
(Ross + Rachel) = Prof. Green
Give examples of each of the 3 pillars of dispute resolution?
Mediation: - Conciliation
Negotiation: -
-Neutral fact finding
-Expert appraisal
-Early neutral intervention
Arbitration:-
-Litigation
-Arbitration
-Expert determination
-Adjudication
-Ombudsman
-Dispute review board
How do mediation and concilliation differ globally?
In mediation, the mediator acts as a facilitator who helps the parties in agreeing.
Concilliation allows for the facilitator to play a more direct role in the solution for the dispute. The facilitator can make suggestions towards certain proposals and give advice for certain solutions. Similar to mediation, although a conciliator is also required to express their opinion on the dispute.
What is Alternative Dispute Resolution?
ADR predominately means alternative dispute resolutions, and refers to processes which are alternatives to the traditional binding dispute resolution procedures of litigation and arbitration.
Main forms of ADR: Mediation, Negotiation, Adjudication
Why might you prefer to pursue ADR rather than litigation through the courts
- Protect working/partnering relationships
- Cost and time exhaustive
- Solve problem faster
- Avoid stress of going to court
- Confidential
- Can be more flexible with outcomes
- Achieve mutual agreement
What would you do if you identified a perceived/actual conflict of interest?
As soon as you are aware disclose to the client in writing, the possibility and nature of conflict. Advise client in writing that you can not continue to represent unless:
-parties feel they can act 100% impartially
-legal
-the client finds it acceptable and approves, in writing, the specific conflict handling arrangement put in place (informed consent)
Decision to be recorded.
Can you tell me about any RICS guidance relating to conflict of interest?
Professional statement: Conflicts of Interest, 1st Ed
Supports the RoC, split in 3 parts:
1. mandatory rules and definitions
2. general commentary, how RICS expects members to comply
3. supplemental commentary
What is the practice of dual agency/double dipping?
Dual agency, also known as double dipping, is defined by the RICS as ‘where an agent has a contractual agency relationship with both the seller and the buyer at the same time’. It must not be undertaken under any circumstances.
