Flashcards in Common causes of disputes Deck (15)
What is a conflict?
A conflict is a clash of interest
Basis of conflict may be personal, racial, class, caste, political and international
What is a conflict of interest?
A conflict of interest is a situation in which a person or organization is involved in multiple interests, financial or otherwise, and serving one interest could involve working against another
How do you avoid conflict on a project?
Firstly, ensure the tender information is clear, concise when tendering the project. i.e. a clear scope of works
If there is a dispute, use a people approach first and try to negotiate an agreement before going legal
As a last resort you should go legal
A proactive strategy for completion of a project will help avoid conflicts and will include a thorough assessment of the risks for disputes occurring with agreed procedures for dealing with differences of opinion amicably
What are some conflict avoidance processes?
Good management - Proactivity and raising any concerns early on
Clear contract documentation - capturing specific details of project and addressing potential risks
Partnering and alliancing - building co-operation between project members to foster team working, problem solving
Good project management – proactively manage all aspects of time, money and risk associated with project
Good client management - understanding the client’s objectives and approach to risk is valuable
Good construction management
Good design team management
Good payment practice - payments made promptly after work conducted
Regular reporting and proactivity
What is the key RICS GN relating to conflict avoidance and dispute resolution?
RICS Guidance Note – Conflict Avoidance and Dispute Resolution in Construction (2012)
What is the main focus of the RICS GN Conflict Avoidance and Dispute Resolution in Construction (2012)?
Identifies the key areas surveyors should understand in respect of avoiding conflict and resolving disputes
What are some common causes of disputes?
o Contract errors or omissions
o Differing site conditions
o Noncompliance of contractual obligation
o Unclear definition of risk
What is dispute resolution?
DR is about recognising when a dispute has arisen and appreciating the escalation of that dispute
Understanding the range of techniques available to resolve dispute and seeking appropriate guidance before client is placed at a disadvantage in respect of its position with the other party
What techniques are available to resolve disputes?
Negotiation – the problem-solving efforts of the parties themselves
Mediation / conciliation – a third-party intervention DOES NOT not lead to a binding decision being imposed on the parties
Adjudicative process – the final outcome is determined by a third party who DOES impose a binding decision on the parties
What are the THREE types of COI defined in the RICS MPS Conflicts of Interest?
1. Party Conflict
2. Own Interest Conflict
3. Confidential Information Conflict
What is a PARTY COI?
Where a member acting in the interests of a client/other party conflicts with a duty owed to another client/other party
E.G. advising both a landlord and a tenant when negotiating terms of a lease
What is an OWN INTEREST COI?
Where a member acting in the interests of a client/other party conflicts with the own interests of the member
E.G. including a contractor on a tender list for a client
where the member has an interest in the contractor’s company i.e. family or an investment
What is a CONFIDENTIAL INFORMATION COI?
Where a member providing information to one client
conflicts with a duty to another client to keep that same information confidential
E.G. telling one client about the feedback from a pre-app on another client’s scheme
How do you identify a COI?
Database checks, advisory emails to staff to enquire about any individual involvement, existing record searches, etc.
Some firms might request staff declare any personal interests in property at time of joining organisation, and to update the register on an ongoing basis
Proper consideration of business and ownership structures (such as separate legal entities, any common directors, any fee sharing, etc)
The embarrassment test – would the issue be embarrassing if reported in the news?
Continue to refer to the PS