Conflict Avoidance - L1 Flashcards
1
Q
What is a conflict?
A
A disagreement or argument, implies protracted one and implies severity
2
Q
When do disputes arise in your role?
A
- Money
- Delays
- Defects
- Different objectives or different professional opinion
- Personalities / emotions
- Historic context
3
Q
What can you do if negotiations break down?
A
- Formal dispute resolution e.g. litigation, mediation, negotiation
- Partnering techniques e.g. to find common agreement or commitments
4
Q
What is a conflict of interest?
A
Conflict of interest arises when a firms’ independence and impartiality is threatened due to the existence of a conflict between two clients e.g. financial interest, personal interest, commercial relationships, acting on both sides of transaction
5
Q
What do RICS RoC say about avoiding conflicts of interest?
A
Rule 1: Members and firms identify actual and potential Conflicts of Interest throughout a professional assignment and do not provide any advice or services where a COI or a significant risk of one arises, unless they do so in accordance with the current edition of Conflicts of Interest, RICS Professional Statement
6
Q
Give examples of ways that conflict can be avoided.
A
- Risk management
- Early warning signs
- Partnering techniques
- Clear briefs
- Regular communication
7
Q
What is risk management?
A
Identifying the causes of disputes to minimise or avoid them
8
Q
What are the early warning signs in relation to dispute avoidance?
A
Identifying early symptoms of problems
9
Q
Why is good management important?
A
- Proactivity and planning work load helps raise issues of concern and provides confidence in surveyors ability
- Proactive management and preparation helps prevent disputes
10
Q
What are the benefits of clear contract documentation?
A
- Disputes arise from ambiguities in contract documentation
- Should capture specific details of the project and identify risks and set strategy to resolve
11
Q
What is partnering or alliancing?
A
Agreement to pursue mutual goals and objectives prior to proceeding might be with aid of neutral facilitators
12
Q
Why is good project or instruction management important?
A
- Proactively managing time, money and risk
- Involved addressing difficult issues
- Allocating responsibility for any or all items not adequate
- Even if not project manager, surveyor should apply project management techniques to their services
13
Q
How can good client management reduce conflict?
A
- Understand client objective and approach is valuable and maintaining good lines of communication
- Build sufficient rapport to avoid a situation where client incorrectly believes surveyor is in control of all
- Surveyor should warn client about issues and problems and discuss how issues should be dealt with
14
Q
Give examples of good payment practices.
A
- Payments made promptly
- Payments made in accordance with agreement in terms of value
15
Q
How can good record keeping avoid conflict?
A
- Disputes can be resolved by retrospectively looking back at records
- Proper record of labour, plant, materials is important
- Daily record of site activities and progress reports
- Record of resource movement, when change occurs, why change occurred and what impact
16
Q
How do reporting and proactivity reduce conflict?
A
- Regular monitoring cost, progress, quality is important e.g. form of minutes, progress reports, drop lines on programme
- Raise and manage issues causing delay
- Increase cost or quality of product as soon as practicably possible
- Actions should be recorded and tracked towards conclusion
17
Q
What are the three pillars of dispute resolution?
A
1 Negotiation - problem solving efforts of parties themselves
2 Mediation or Conciliation - third party intervention which does not bind parties
3 Adjudicative Process - an outcome is determined by a third party such as litigation / arbitration
18
Q
Who introduced these terms?
A
- Professor Green, Boston University
- Negotiation e.g. neutral fact finding
- Mediation e.g. conciliation
- Adjudication e.g. litigation, arbitration, expert determination
19
Q
How do mediation and conciliation differ globally?
A
Mediation is a neutral facilitator whereas under conciliation the mediator is required to express their opinion
20
Q
Why is this important to be aware of?
A
If instructed to act then distinction is important between the two services
21
Q
What is Alternative Dispute Resolution?
A
Procedures to resolve conflicts between parties without resorting to litigation
22
Q
What is litigation?
A
Process of parties taking legal action through the Courts
23
Q
What governs litigation in the Courts?
A
Civil Procedure Rules 1998
24
Q
What are the issues with litigation?
A
- Public process so no confidentiality
- Costly and time efficient way of resolving: length, rent, repair obligations, service charge, alienation, break clauses
- Strict procedures
- Lay judges may not have expertise in property
25
What are the benefits of ADR?
* Cheaper than litigation
* Quicker than litigation
* Flexible process not governed by the CPR
* Can be confidential
* Can involve specialists / experts rather than lay judges
26
What is mediation?
Confidential process where a neutral party facilitates negotiations between the parties
27
What is conciliation?
Confidential process where a neutral party facilitates negotiations between the parties and expresses their opinion on the dispute
28
What is adjudication?
Statutory UK dispute resolution procedure to provide an interim binding decision
29
What is arbitration?
Third party receives written evidence or verbal evidence at a hearing from the parties' representatives and makes a legally binding decision
30
What is expert determination?
Third party provides an expert opinion on the dispute
31
Tell me about a conflict of interest check you have carried out.
1 Conflict Avoidance - decide whether conflicy is irresolvable
2 Written Advice to Both Parties - disclose nature of conflict clear as possible and request informed consent
3 Manage conflict - e.g. using information barrier
32
What would you do if you identified a perceived / actual conflict of interest?
* An RICS firm must not advise or represent a client where doing so would involve a COI or a significant risk of a COI
* Other than where affected firm has provided Informed Consent
33
Can you tell me about any RICS guidance relating to conflicts of interest?
Conflict of Interest, First Edition March 2017
34
What is the practice of dual agency / double dipping?
Dual agency 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. Must not be undertaken
35
Can you tell me about any RICS guidance relating to dual agency / double dipping?
* RICS formally banned double dipping 1 January 2018
* Conflict of Interest, First Edition March 2017
36
What is the difference between an arbitrator and an independent expert?
Arbitrator:
* Governed by Arbritration Act 1996
* Third party receives evidence and makes legally binding decision
* Arbitrator powers of discovery (i.e. disclosure of documents or calling witnesses to give evidence)
* Limited grounds for appeal and not liable for negligence
Independent Expert:
* Appointed by the parties to give expert opinion on the dispute
* May be required to consider evidence
* May have to give a reasoned determination
* Not legally binding and not liable for negligence
37
Can you tell me about any other types of ADR?
* Mediation
* Conciliation
* Adjudication
38
What is the Technology & Construction Court and what is its role?
TCC is the part of the High Court that deals with construction related litigation
39
If you work with contracts, explain how dispute resolution works in a contract you have worked with.
* BBB Protected Tenants Lease Valuation
* Dispute over tenancy value determined by an Independent Valuer who's decision is final and binding except in case of manifest error
40
Explain the role of the Civil Procedure Rules (CPRs).
* Civil Procedure Rules 1998 the overriding objective is to enable the court to deal with cases justly
* Before commencing court proceedings expect both parties to understand each other's position, try and settle without proceedings, support efficient management of proceedings, consider ADR
Stages of action are:
* Particulars of Claim
* Submission of defence
* Legal disclosure
* Preparation and submission of witness statements
* Exchange of expert witness evidence
* Trial
41
What does CPR Practice Direction 35 relate to?
Hot tubbing / concurrent evidence - judge chairs discussion with experts of same discipline / counsel with agenda based on Joint Statement
42
What governs dispute resolution during insolvency or bankruptcy proceedings?
* Insolvency Act governs proceedings disputes with associated insolvency
* Beyond scope of Conflicts Avoidance Guidance Note 2012 and specialist advice sought
43
What is a Dispute Review or Recommendation Board (DRB) and how does this process work?
* Three dispute board members appointed at start of a project
* Become familiar with the project and documentation
* If / as issues arise they are asked for non-binding recommendation
* Recommendations used to resolve disputes and prevent formal disputes
44
What is a Dispute Adjudication Board (DAB) and how does this process work?
Similar to DRB however they make formal written decisions which bind the parties in which the dispute arises
45
What are the relevant timescales for adjudication?
28-42 days statutory UK dispute resolution
46
Which Act governs adjudication?
Adjudication is governed under Housing Grants, Construction and Regeneration Act 1996
47
What is the basic principle of adjudication?
* Statutory UK dispute resolution process akin to simple arbitration
* Reaches an interim binding decision until the dispute is finalised by another process e.g. litigation, arbitration, mutual agreement
48
What claims is adjudication appropriate for?
* Construction and engineering contracts, construction, repairing, refurbishment
* Not apply to residential occupier
* Neither does it apply for drilling, extracting gas, minerals, tunnelling, boring, demolition of plant
49
What is the aim of adjudication?
To reach fair, rapid, cost effective decision on disputes arising under construction contracts usually within a 28 day timeframe
50
Explain the various adjudication services provided by RICS.
The RICS runs the RICS Dispute Resolution Service - largest provider of ADR services
51
Explain the impact of the Housing Grants Construction and Regeneration Act 1996 (Construction Act) on dispute resolution and construction contracts.
Housing Grants Construction and Regeneration Act 1996 allows any party to a construction contact to refer a dispute to a 28-day procedure under where the matter is decided by an independent adjudicator
52
What timeframe is relevant under this?
28 days
53
Explain what the role of the RICS Low Value Dispute Adjudication service is.
* Construction adjudication is costly
* Collaboration with Construction Industry Council (CIC) where to develop a low-cost adjudication procedure
* Provides uncomplicated structure and programme to manage disputes
54
What level of claim can this service be used for?
Resolves sums of less than £50,000
55
What makes this process cost effective?
* Adjudicator is expected to limit length, time of submission statement response or argument
* Parties are forced to document no more than one A4 lever arch file per submission
56
How does homeowner adjudication work under the Construction Act?
* Unless both parties agree, Construction Act adjudication does not automatically apply where one party is a residential occupier and works are carried out on the home
* Works undertaken under the JCT Building Contract for Homeowner / Occupier for specialist disputes between business and homeowners
57
What is the role of RICS in dispute resolution?
* The RICS run the Dispute Resolution Service
* The RICS published practice statement on dispute resolution
58
What RICS guidance are you aware of relating to dispute resolution, ADR or roles in dispute resolution?
* Conflict of Interest, First Edition March 2017
* Conflict Avoidance and Dispute Resolution in Construction
* Surveyors Acting as Expert Witnesses 2023
59
Tell me about your role if you were acting as an expert / witness / advocate.
Expert witness:
* Provide a statement of truth within evidence which must be independent and unbiased within scope of experience / knowledge
* State facts and assumptions relied upon without exception
* Statements must be impartial and uninfluenced
Advocate:
* Owe a duty of care to clients
* Owe a duty to act fairly and to maintain integrity
* Objective and truthful all the time
Are allowed to advance interpretations in evidence that are advantageous to their client however not conceal evidence or distort evidence
60
What is the difference between the two?
* Expert witness is impartial and uninfluenced
* Advocate act on behalf of client
61
How does your duty of care differ in the two roles?
As expert witness you have a primary duty of care to the court and cannot act on an incentivised or a contingency fee basis
62
What tribunals are you aware of?
* Valutaion Tribunal
* Lands Tribunal
63
When might the Lands Tribunal be involved in a dispute?
* Decision about rates made by Valuation Tribunal (England and Wales)
* Compensation for CPO
* Discharge or Modification of Restrictive Covenant
* Compensation of land affected by restrictive covenant
* Compensation effect on land for public works
* TPO
* Damage to land from mining
* Right to light dispute
* Electronic Communication Code - disputes on masts
64
What are the differences between conflict avoidance and dispute resolution?
* Conflict Avoidance: clear strategic planning. Proactive conflict avoidance techniques e.g. risk analysis, risk registers
* Dispute Resolution: procedure to resolve conflicts once arisen
65
Which dispute resolution procedures lead to a binding decision?
* Arbitration
* Litigation
66
What is a Scott Schedule and when would one be used?
* Table of inputs from claimant and respondent
* Identifies the questions the judge has to decide
* Claimant sets out response first and respondent responds
* Used in litigation in court
67
Explain the RICS conflict avoidance pledge.
* Believe in collaborative working
* Use early intervention techniques in supply chain
* Embed conflict avoidance techniques to assist prevent formal adversarial dispute resolution
* Work proactively to avoid conflict and resolve dispute
* Develop capability to identify early disputes
* Promote collaborative working
* Commit to work with industry partners to promote conflict avoidance mechanism
68
What RICS guidance relates to conflicts of interest for dispute resolvers?
Conflicts of Interest for Members Acting as Dispute Resolvers, 2nd Edition
69
How has dispute resolution in the property and construction industries been used effectively during Covid-19?
The Commercial Rent (Coronavirus) Act 2022
70
Explain the proposed provisions of the Commercial Rent (Coronavirus) Bill.
* The Commercial Rent (Coronavirus) Act 2022
* A legally binding process for eligible commercial landlords and tenants who have debts occurred because of the pandemic and have not yet reached an agreement
* The law applies to commercial rent debts of businesses including pubs, gyms and restaurants which were mandated to close
