Conflict avoidance, management and dispute resolution procedures Flashcards
(37 cards)
What is a conflict?
A disagreement, dispute, or clash between two or more individuals or groups
When do disputes arise in your role?
Fees, payment, delays (taking too long to respond), differences in professional opinion
What can you do if negotiations break down?
Dispute resolution procedures, such as mediation or conciliation
What is a conflict of interest?
A situation where a person or entity has a personal or financial interest that conflicts with their professional duties or responsibilities
What do the RICS Rules of Conduct say about avoiding conflicts of interest?
Act with integrity: Members must act honestly and avoid conflicts of interest that could compromise their professional judgement.
Declare any potential conflicts: Members must declare any potential conflicts of interest as soon as they become aware of them.
Obtain informed consent: Members must obtain informed consent from clients and others involved in a transaction when a conflict of interest exists.
Take appropriate action: Members must take appropriate action to manage or avoid conflicts of interest.
Give examples of ways that conflict can be avoided.
Record keeping, disclose any potential conflict to the client.
You should only seek Informed Consent in order to proceed if you are satisfied that all of the relevant clients’ (or other parties’) interests will be served by you doing the work.
What are the benefits of clear contract documentation?
Establish scope of work, avoid misunderstanding, avoid disputes, manage risks
What is partnering or alliancing?
Partnering or alliancing is a collaborative approach to project delivery that involves establishing a long-term partnership or alliance between two or more organizations in order to achieve common goals.
How can good client management reduce conflict?
Build trust, strong relationship, clear communication, manage expectations, proactive problem solving, listening and being empathetic, flexibility and compromise
Give examples of good payment practices.
Clear payment terms, prompt invoicing, payment reminders
What are the three pillars of dispute resolution?
Negotiation, mediation, and arbitration
How do mediation and conciliation differ globally? Why is this important to be aware of?
Mediation is a process where a neutral third party, known as a mediator, helps the parties in a dispute to negotiate a settlement. The mediator does not make a decision or impose a solution, but rather helps the parties to identify and address the underlying issues and interests that are driving the dispute.
In contrast, conciliation is a process where a neutral third party, known as a conciliator, actively intervenes in the dispute and makes recommendations for a resolution. The conciliator may provide expert advice or make proposals for settlement, and the parties may be required to accept the recommendations in order to reach a resolution.
What is Alternative Dispute Resolution (ADR)?
Anything but the litigation or court proceedings:
negotiations, mediation, arbitration
Why might you prefer to pursue ADR rather than litigation through the Courts?
Faster, more flexible, cost efficient
Tell me about a conflict of interest check you have carried out.
Once I receive a formal requirement from the client to provide valuation services, I undertake conflict of interest check which is standard in my firm: sending the email to all employees of the firm detailing the potential mandate, client company name, point of contact, property type, if it is an existing client or no and asking to confirm if there is any potential conflict that could be present.
What would you do if you identified a perceived/actual conflict of interest?
Disclose the conflict to all parties informed, ask for a permission to proceed, if informed consent received from all parties involved, only proceed g with the work (and seek Informed Consent in order to proceed) if you are
satisfied that all of the relevant clients’ interests will be served by you
doing the work.
You should not seek Informed
Consent in order to proceed because your firm’s interests are served by doing so. Obtaining Informed Consent is a process that requires proper consideration, professional judgment, and careful execution with every affected party.
Can you tell me about any RICS guidance relating to conflicts of interest?
RICS professional statement Conflict of Interest 1st edition March 2017, effective from January 2018
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.
What is the difference between an arbitrator and an independent expert?
An arbitrator is appointed to resolve a dispute between two or more parties, while an independent expert is appointed to provide an opinion or advice on a particular issue.
An arbitrator has the authority to make a binding decision that is enforceable in a court of law, while an independent expert does not have the power to make a binding decision.
Can you tell me about mediation/conciliation/adjudication?
Mediation: a confidential process where a neutral party facilitates negotiations between the parties.
Conciliation: similar to mediation, although a conciliator is also required to express their opinion on the dispute.
Adjudication: the legal process by which an arbiter or judge reviews evidence and argumentation, including legal reasoning set forth by opposing parties, to come to a binding decision
What governs dispute resolution during insolvency or bankruptcy proceedings?
Federal Law No. 9/2016 (the “Bankruptcy Law”) is the primary legislation governing insolvency and restructuring proceedings in the UAE
What is a Dispute Review or Recommendation Board (DRB)?
DRB process is an effective form of dispute resolution in construction projects, providing an impartial and independent review of disputes and promoting dialogue and collaboration between the parties.
When a dispute arises, the parties present their respective positions to the DRB, and the DRB reviews the evidence and provides a non-binding recommendation or review of the dispute. The parties may use the DRB’s recommendation as a basis for settlement negotiations, or they may choose to pursue other forms of dispute resolution if they are unable to reach an agreement.
What is a Dispute Adjudication Board (DAB)? How do these work?
A DAB is typically established at the outset of the project and consists of one or three independent experts who are knowledgeable about the technical aspects of the project. The DAB is responsible for adjudicating disputes that arise during the construction process.
When a dispute arises, the parties present their respective positions to the DAB, and the DAB reviews the evidence and makes a binding decision or award on the dispute. The decision of the DAB is typically final and binding, subject to any right of appeal that may be available under the contract or applicable law.
What are the relevant timescales for adjudication?
The Adjudicator is to reach their decision within 28 days
