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APC > Conflict Avoidance > Flashcards

Conflict Avoidance Flashcards

1
Q

What are dispute handling procedures?

A

Procedures to handle disputes between parties

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2
Q

What is a dispute?

A

A disagreement / argument / controversy

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3
Q

What are the main forms of dispute resolution?

A
  1. Negotiation
  2. Mediation / conciliation
  3. Adjudicative process
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4
Q

What are alternative dispute resolutions?

A

Dispute resolutions that fall outside the scope of court litigation.

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5
Q

What are the advantages of ADR?

A
  1. Speed
  2. Informality
  3. Lower cost
  4. Confidential
  5. Greater degree of negotiation
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6
Q

What are methods of ADR?

A
  1. Mediation
  2. Arbitration
  3. Independent Expert Determination
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7
Q

What is mediation?

A

A neutral mediator is used to facilitate discussions.

It is informal and confidential.

Parties are not bound by the decision.

Conducted on a ‘without prejudice’ basis.

RICS Guidance Note ‘Mediation’ 2014.

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8
Q

What does ‘Without Prejudice’ mean?

A

Usually used in mediation and in written and verbal communication.

Basically means that the parties, although they are trying to revolve the dispute, they are not admitting to any part of the case or waiving any of their rights.

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9
Q

What is arbitration?

A

Arbitrator is an appointed quasi-judicial judge.

Their decision is binding.

They have specialist knowledge.

Can’t be sued for negligence.

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10
Q

What is Independent Expert Determination?

A

An independent expert is appointed.

They have expert knowledge.

Parties are bound by the decision.

They review evidence but also use their own opinion and experience to determine outcome.

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11
Q

What is litigation?

A

Court process.

Lots of different stages.

Negotiations can occur before the pre-trial stage.

Mediation can occur in the pre-trial review stage.

As a result, lots of cases don’t actually end up in court.

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12
Q

What is the difference between litigation and arbirtation?

A

Litigation:

  • can’t choose judge
  • public
  • lower cost
  • open court

Arbitration:

  • can choose judge
  • confidential
  • private court
  • higher cost as pay for judge too
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13
Q

What is an expert witness?

A

Someone who provides expert knowledge in court.

Must give independent and objective, unbiased opinions.

Their duty is to the court.

Can be sued for negligence.

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14
Q

Can Surveyor’s act as expert witnesses?

A

Yes.

Must follow RICS Practice Statement: Surveyors Acting as Expert Witnesses 2014.

Have to be trained properly and have the experience and not be conflicted.

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15
Q

What is an advocate?

A

They act for their client.

Must be competent and uphold the integrity of the judicial system.

Can’t be sued for negligence.

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16
Q

What RICS documents relate to advocates?

A

RICS Professional Statement: Surveyor’s acting as Advocates 2017

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17
Q

What is the difference between an expert witness and an advocate?

A

Expert Witness:
- duty to court

Advocate:
- duty to client

18
Q

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

A

Expert witness:

  • gives expert evidence
  • they are not a judge
  • can be sued

Arbitrators:

  • never gives expert evidence
  • they are a judge
  • can’t be sued
19
Q

What is negligence?

A

When a breach of duty to care occurs.

20
Q

When can a surveyor be sued for negligence?

A

Yes, a duty of care exists to clients and third parties.

When breached, and there is a loss, a claim for damages can arise.

21
Q

What is a conflict of interest check?

A

Where you check your impartiality and objectivity prior to accepting an instruction.

22
Q

What is a conflict of interest?

A

A situation where your impartiality and objectivity is impacted.

23
Q

Why do you conduct a COI check prior to accepting an instruction?

A

To ensure I can be impartial and objective throughout the instruction.

24
Q

How else would you conduct a conflict of interest check if you didn’t have a database?

A

I would email my team and my company to ensure there has been no prior involvement, or the extent of the involvement.

25
Q

What does the RICS say regarding conflicts?

A

RICS Global Professional Statement: Conflicts of Interest 2017.

Members cannot act if there is a conflict, unless it can be managed and informed consent is given.

26
Q

What are the three types of conflict?

A

Party conflict - work on same instruction for two parties
Own interest
Confidential information - work between two parties that is confidential

27
Q

What is conflict avoidance?

A

Where you avoid an instruction.

28
Q

What is conflict management?

A

Where you accept an instruction and provisions have been put in place to manage the conflict, i.e. with an information barrier, and the clients have provided informed consent.

29
Q

What is informed consent?

A

Written confirmation from the parties to proceed, regardless of the the conflict.

Can only seek informed consent if you believe you can still act and its in the parties best interests.

30
Q

How can a conflict be managed?

A

Using an information barrier.

Where the two surveyors are separated and files are kept separate and secure.

31
Q

What documents relates to conflicts and agency work within the UK?

A

RICS Professional Statement: Conflicts of Interest - UK Commercial Property Market Investment Agency 2017.

32
Q

What are the principles of the RICS Professional Statement: Conflicts of Interest - UK Commercial Property Market Investment Agency 2017?

A

No dual agency.

If you are instructed to make multiple introductions of a commercial real estate investment opportunity.

Need to make it clear whether the agent is acting on an exclusive or non-exclusive basis.

If exclusive, need to write to other parties to inform them that you can no longer act for them.

33
Q

If your agency team is selling the property, can you value the property?

A

Under the RICS Professional Statement: Conflicts of Interest - UK Commercial Property Market Investment Agency 2017.

I can provide the advice, if consent is given and an information barrier is put up.

34
Q

Can you accept an agency instruction if you have a personal interest?

A

You can, if you believe you can act impartially and objectively.

However, need to declare facts before an instruction - disclose personal interests under Section 21 of the Estate Agents Act 1979.

35
Q

How can you avoid conflict?

A

Clear and concise contract drafting
Managing expectations
Negotiating contractual obligations carefully
Keeping good records with sufficient detail.

36
Q

What is the difference between a conflict and a dispute?

A

Dispute = short term disagreement which can be resolved.

Conflict = longer term, deeply rooted problem - issues seen as non-negotiable.

37
Q

What is a redress scheme?

A

Allows consumers to escalate a complaint they have against the member of the scheme.

Purpose is to help resolve and settle complaints from consumers who have suffered a loss as a result of a member.

38
Q

What redress scheme does the RICS provide?

A

RICS Dispute Resolution Service

39
Q

What redress scheme does Savills use?

A

The Property Redress Scheme

40
Q

How do disputes occur?

A

Failure to comply with contractual obligations.

Potentially due to differing interpretation of the contract.

41
Q

What is a Calderbank letter/offer?

A

It is a settlement offer made on a “without prejudice save as to costs” basis.

Can be used to settle a dispute for a lower amount and avoid going to court.

It puts the other side on notice that if the dispute goes before a court, and the outcome is less favourable to the other side than the Calderbank offer being made to them, the party making the offer is entitled to more of their costs of the trial process being recovered, as the court may take into account the offer when they decide on the costs awarded.

APC (21 decks)

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