Conflict avoidance, management and dispute resolution procedures Flashcards
What is a conflict?
Clash of interest and an active disagreement
When do disputes arise in your role?
Fee dispute
What is a conflict of interest?
When an individuals independence or impartiality is affected due to a conflict between two parties or another influence (buyer and seller)
What do the RICS Rules of Conduct say about avoiding conflicts of interest?
Rule 1 - Members and firms identify actual and potential conflicts of interest throughout a professional
assignment and do not provide advice or services where a conflict of interest or a significant risk of
one arises, unless they do so in accordance with the current edition of Conflicts of interest, RICS
professional statement
Firms have effective processes to identify actual and potential conflicts of interest, to enable
appropriate decisions to be made on whether to accept work, and to keep records of decisions made
about actual and potential conflicts of interest
Give examples of ways that conflict can be avoided.
Clear, concise drafting of the contract or lease
Risk analysis - of what could go wrong and how misinterpretation might go wrong
Managing all parties expectations - serving appropriate notices
Transparency in negotiation
Keep good file records
What can you do if negotiations break down?
Mediator- A neutral mediator who facilitates discussions between two parties
Independent Expert- Either pointed by the President of the RICS or directly appointed by the parties to a dispute
Arbitrator- Main difference is that you are governed by Arbitration Act 1996. Decision made based on only what is provided by either party. Does allow each party to provide further evidence to counter claims.
What are the benefits of clear contract documentation?
Reduces the chance of misinterpretation which can lead to a disagreement in understanding and therefore conflict
What is partnering or alliancing?
Partnering is a broad term used to describe a collaborative management approach that encourages openness and trust between parties to a contract
What are the three pillars of dispute resolution?
There are three main processes available in dispute resolution:
Negotiation - problem solving efforts of the parties themselves
Mediation - Third party intervention - assists them but does not bind them to a decision
Adjudicative process: outcome is determined by a third party (litigation and arbitration)
Give examples of the three pillars of dispute resolution
Negotiation - business contract negotiation / labour negotiation
Mediation - Neighbour dispute / workplace conflict
Arbitration - Consumer dispute
How do mediation and conciliation differ globally?
Mediation is supported by an unbiased third-party mediator. With conciliation, the conciliator will play an advisory role and may intervene in order to offer feasible solutions to both parties and help settle their disputes.
What is Alternative Dispute Resolution (ADR)?
Alternative dispute resolution, or external dispute resolution, typically denotes a wide range of dispute resolution processes and techniques that parties can use to settle disputes with the help of a third party. They are used for disagreeing parties who cannot come to an agreement without going to court litigation
Why is it important to understand the difference between mediation and conciliation?
Enforceability: In some jurisdictions, mediated settlements may have different levels of enforceability compared to conciliated settlements. Understanding these legal implications is important for the enforceability of any resulting agreement.
Why might you prefer to pursue ADR rather than litigation through the Courts?
Advantages of ADR:
Speed - court is lengthy
Informality - greater opportunity for negotiation outside of court
Cost - less professional fees
Protects Confidentiality
Tell me about a conflict of interest check you have carried out.
Motspur Park - when instructing an architect I learnt that a member of their teamlived in the local area and highlighted a potential conflict of interest to my manager. We spoke with the consultant who agreed that they would have a conflict of interest working on the scheme, as the gas holder structures are of local significance
What would you do if you identified a perceived/actual conflict of interest?
Three step process:
1) Conflict avoidance - consider if the conflict is irresolvable because impartiality is compromised, or whether it can be properly managed through transparency and openness. Decided whether you want to accept or decline the works
2) Written Consent - if accept, you need to set out in writing to both parties:
- The nature of the conflict and how you plan to deal with it
- Be as clear as you can and ensure both parties make their own decision
- Request written confirmation from both parties of their informed consent that they are ok
3) Conflict management - Set up an information barrier between the two parties affected throughout the instruction
Can you tell me about any RICS guidance relating to conflicts of interest?
There is guidance set out in Rule 1 of the RICS Rules of Conduct
RICS Professional Statement - Conflict of Interest (2017) - mandatory statement setting out how conflicts should be managed and details surrounding obtaining informed consent.
Can you tell me about any recent RICS guidance relating to dual agency/double dipping?
RICS Professional Statement - Conflicts of interest – UK commercial property market investment agency - says no double dipping
What is the difference between an arbitrator and an independent expert?
Arbitrator is appointed in a quasi-judicial role in accordance with the Arbitration Act 1996. Parties are bound by decision.
Independent expert - is appointed by the two parties
Can you tell me about any other types of ADR?
Mediation: uses a neutral mediator to facilitate discussion between the two parties. They’ll assist but will not advice nor make a decision
Arbitration - an arbitrator is appointed in a quasi-judicial role in accordance with the arbitration act 1996. Parties are bound by the decision. They can order a hearing or consider written representations.
Adjudication - commonly used for construction payment disputes. Adjudicator uses their knowledge to reach a legally binding decision in a contractual process. Must decide within 28 days.
Independent Expert determination - Independent expert is appointed by the two parties or by RICS present in some cases. Parties are bound by the decision
Can you tell me about mediation/conciliation/adjudication?
Role of the Mediator: The mediator’s role is to facilitate communication and negotiation between the parties. They do not impose a decision or solution but help the parties explore issues, generate options, and find common ground.
Role of the Conciliator: The conciliator plays a facilitative role similar to a mediator but may also provide expert opinions or recommendations based on the information gathered.
Role of the Adjudicator: The adjudicator reviews the evidence presented by the parties, listens to arguments, and then issues a legally binding decision, often referred to as a judgment or ruling.
If you work with contracts, explain how dispute resolution works in a contract you have worked with.
think about this answer.
Explain the role of the Civil Procedure Rules (CPRs).
The Civil Procedure Rules (CPRs) are a set of rules and procedures that govern civil litigation in the courts of England and Wales. They play a crucial role in the legal system by providing a structured framework for how civil cases are conducted and resolved
What does CPR Practice Direction 35 relate to?
Practice Direction 35 (PD 35) in the Civil Procedure Rules (CPR) of England and Wales relates to expert evidence in civil proceedings. PD 35 provides guidance and rules regarding the use of expert witnesses and the presentation of expert evidence in court cases.
