Conflict Avoidance, Management and Dispute Resoultion (L1) Flashcards
(53 cards)
1
Q
What can you tell me about mediation? Why might this be a favourable ADR compared to litigation?
A
- Third party who facilitates discussions in order to reach an amicable solution
- Private, less time consuming and cost effective in comparison to litigation
2
Q
How does mediation vary from conciliation?
A
Mediation
- A mediator facilitating discussions and does not provide solutions or make decisions
- Understand one another’s concerns, perspectives
Conciliation
- A conciliatory approach it’s a more proactive approach to offering suggestions and solutions
- Often meets parties separately to discuss concerns
- Can lead to a more structured resolution
3
Q
What are the timeframes for ajudication?
A
- Design to be a swift method for resolving disputes
- Notice of adjudication from one party to another as soon as the dispute arises
- Appointment of Ajudicator
- After notice, 7 days to agree an ajudicator
- If they cannot agree, can be sourced through nominating body, RICS - Referral Notice
- Referring party must submit a referral notice to ajudicator within 7 days - Response from other Party
- Other party has 14 days to respond to the referral notice giving arguments and evidence - Ajudicators Decision
- Ajudicator must make a decision within 28 days of the referral notice
- This can be extended by 14 days if both parties agree - Implementation of the Decision
- Parties are required to implement the ajudicators decision promptly, even if they intent to challenge later in court
4
Q
Why might companies want to avoid litigation?
A
- Cost
- Very expensive due to legal fees - Time
- Lengthy, can take months or years
- Project timelines and disrupt business - Complexity
- Complex technical and legal issues - Publicity
- Harm of companies reputation - Uncertainty of Outcomes
- Impact on project delivery
- Preserving confidentiality
5
Q
Do you have experience dealing with a dispute?
A
- No, I have not had experience in the dispute reaching mediation or ajudication
- However negotiations have taken place to prevent escalation during my projects
Attic Storage Barking
- Contractor threatened to halt works on site unless Extension of Time was granted within 2 weeks, even though the contract allows for 12 for review of Extension of Time claim
6
Q
What role do the RICS have in Dispute Resolution?
A
- Have their own dispute resolution service
- Ajudicator Appointment
- RICS is a nominating body
- Maintains a panel of experienced adjudicators - Guidance and Standards
- RICS provide best practice standards, and codes of conduct for professionals - Training and Accreditation
- RICS offers training programmes for adjudicating mediators etc to ensure high standard of expertise - Dispute Resolution Services
- RICS offers various services, helping parties resolve disputes efficiently and effectively - Expert Witness Service
7
Q
What do RICS Rules of Conduct say about avoiding conflicts of interest?
A
Guidance: RICS Professional Standard on Conflicts of Interest 2017
- Duty to avoid conflicts
- Best interests of clients, avoid personal or financial interests - Disclosure
- If a potential conflict arises, disclose to all relevant parties
- Transparency is crucial for trust - Prioritise client interests
- Above their own interest
- Avoid accepting instructions that may lead to a conflict - Informed Consent
- Whete unavoidable, retrieve consent from all parties involved - Professional Judgement
- Take appropriate measures to manage and mitigate conflicts of interest
- Refer to RICS Rules of Conduct
8
Q
Give examples of ways conflict can be avoided?
A
- Clear and effective communication
- Documentation and record taking
- RICS Rules of Conduct No4, respect others
- Regular meetings and record taking
- Written agreements
- Defined roles and responsibilities
- Building relationships / collaboration
9
Q
What is partnering or alliancing?
A
Partnering
- Standard approach where all parties involved in work together to achieve common goals
- Collaboration and mutual benefit
- Open communication
- Trust building
- Joint goals
- Problem solving
Alliancing
- More formalised approach where parties enter into a contractual agreement to share risks and rewards
- Shared risk and reward
- Integrated team
- Collaborative decision-making
- Continuous improvement
10
Q
What are the 3 pillars of dispute resolution?
A
- Prevention
- Conflict avoidance before they arise - Management
- Conflict management rather than escalation - Resolution
- Dispute resolution procedures
- Legally binding
11
Q
Who introduced the 3 pillars of dispute resolution? Prevention, Management, Resolution?
A
- RICS
- As part of their Conflict Avoidance and Dispute Resolution Framework
12
Q
Give examples of each Prevention, Management, Resolution?
A
- Prevention
- Clear and effective communication
- Clear duties and responsibilities
- Meeting minutes and records
- Respecting others RICS ROC4 - Management
- Regular meetings
- Negotiation, Mediation
- Partnering / alliancing - Resolution
- ADR, Ajudication, Arbitration
- RICS nominated for experts
13
Q
Give examples of good payment practices?
A
- Payment timelines in line with the contract
- Transparent payment application and payment certificates
- Regular interim payments
- Communication and tracking
- Prompt payment timelines
14
Q
What is alternative dispute resolution?
A
- Mechanisms to help parties agree on solutions without the need for formal court proceedings and outside of litigation
- Mediation
- Ajudication
- Arbitration
15
Q
Can you tell me about any RICS guidance relating to Conflicts of Interest?
A
- RICS Professional Standard on Conflicts of Interest 2017
- Transparency
- Integrity
- Confidentiality
16
Q
Tell me about a Conflict of Interest check you have carried out?
A
- If I identify a potential conflict of interest, I check all client and project information to understand if there is a possible conflict
Marley Risk Consultants
- Condition surveys for properties along a river bank where water network have been doing retaining wall works
- Codntion survey of parties required to assess whether any impact on the properties
- Have internal system at Ridge to contact all employees to understand whether a conflict of interest is present by providing the water network name, the consultant name, and any businesses within the area being surveyed
17
Q
What is the practice of dual agency / double dipping?
A
- Agency or consultant represents both sides of the transaction, I.e buyer and seller
- RICS prohibit dual agency in their Conflict of Interest Gudiance
18
Q
Recent RICS guidance on dual agency?
A
- Banned in the UK from 2018
- Part of mandatory Professional Statement on Conflicts of Interest
19
Q
What is the difference between an arbitrator and and independent expert?
A
Arbitrator
- Appointed to make legally binding decision
Independent Expert
- Advising expert opinion, not usually legally binding
20
Q
What is the Technology and Construction Court and what is its role?
A
- Specialized division of the High Court
- Resolves complex issues on construction matters
- Judges with specific expertise in these areas
- High value and complex disputes
21
Q
If you work with contracts, tell me about how dispute resolution works in a contract you have worked with?
A
JCT Intermediate Building Contract offers several mechanisms in Section 9 Settlements of disputes such as:
- Mediation
- Mediators to be agreed upon by parties, or nominated body, RICS - Adjudication
- Ajudiactor to be appointed thorium nominating body, RICS - Arbitration
- Provisions set out in the Arbitration Act 1996 apply
- Arbitrator is individual agreed by both parties, can be by nominating body, RICS
22
Q
Explain the role of the civil procedure rules?
A
Sets out rules established by the UK Government
- Governs the conduct of civil litigation in UK
- Designed to make legal process more efficient, transparent, and accessible
- Applies to all civil court cases
- Precaution protocols; steps must be taken before going to court, I.e use of ADR
- Case management; court has duty to manage cases
- Disclosure of documents prior to court
- Judgements and enforcements, order payments etc
- Costs; how costs are calculated and paid in civil cases
23
Q
What does CPR Practice Direction 35 relate to?
A
- Use of expert evidence
- Encourages use of only one expert for matters
24
Q
What changes were made by the Civil Procedure (Amendment) Rules 2023?
A
- FRC - Fixed recoverable costs; legal costs expenses are proportionate
- Clear system for small claims, under £10,000
25
What governs dispute resolution during insolvency or bankruptcy proceedings?
- Insolvency Act 1986
- The construction contract
26
What is a dispute review of recommendation board (DRB)?
- Group of independent experts
- Selected by parties to help resolve disputes
- Avoids cost of lawyers and consultants
- Non-binding recommendations and informal advice
27
How does the dispute review of recommendation board (DRB) work?
- Independent review board of experts
- Informal process, non-binding decisions
- Avoid cost of lawyers
28
What is a dispute adjudication board (DAB)?
- Issue binding decisions
- Made up of 1-3 members selected for their experience, knowledge, impartiality and independence
29
How does dispute ajudication board (DAB) work?
- Agreed by both parties to resolve disputes
- Board of 1-3 members chosen for their expertise
- Binding decision
30
Which act governs Ajudication?
- Housing Grants, Construction and Regeneration Act 1996
(Construction Act 1996)
- Gives rights to resolve disputes through ajudication
- Outlines the rules and framework for ajudication
31
What claims is adjudication appropriate for?
- Quick resolution required
- Contractual disputes, payments etc
- Quality of works
- Extensions of Time
- Less complex claims
32
Explain the various ajudication services provided by the RICS?
- Ajudication for professional negligence claims
- RICS Home Buyer survey and valuation ajudication process
- Ajudication in context of the Construction Act 1996
33
Explain the impact of the Housing Grant, Construction and Regeneration Act 1996 on dispute resolution?
Introduced important references aimed at;
- Improving payment practices
- Enhance fairness
- Streamline dispute resolution
- Statutory right to Ajudication
- Prior to this, parties had limited access to fastrack dispute resolution
34
Explain what the role of RICS Low Value Dispute Ajudication Service is?
- Service provided by RICS for low value claims where other dispute resolution methods are less practical due to value being being below a certain threshold
35
What level of claim is the RICS Low Value Dispute Ajudcation service for?
- No specific value, but could be £50,000 claims
36
What makes this process cost-effective? RICS Low Value Dispute Ajudication Service
- Fast resolution
- Designed for simple disputes
- Streamlined process
- RICS qualified adjudicators
- Proportional to the value
37
How does homeowner ajudication work under the Construction Act 1996?
- Mechanism for homeowners to resolve disputes with contractors quickly and efficiently
- Includes domestic building works such as home extensions, renovations and repairs
38
Can you tell me about PACT in relation to lease renewals?
- Professional Arbitration on Court Terms
- Alternative of going to court, by using arbitration
39
What RICS Guidance are you aware of on Dispute Resolution?
- RICS Black Book Practice Information on Conflict Avoidance and Dispute Resolution in Construction
- RICS Rules of Conduct
- RICS Dispute Resolution Standards, including surveyors acting as experts, surveyors acting as advocates, surveyors acting as arbitrators
40
Tell me about your role if you were an expert witness?
- Review RICS Dispute Resolution Standards on Surveyors acting as Experts
I never have been an expert witness however should
- Ensure I have the correct level of experience and expertise in the field of the case
- Ensure I have the correct level of PII insurance in place to provide expert witness advice
- Remain impartial and adhere to RICS ROC 1, act with honest and integrity
- RICS ROC 5, take responsibly and act in a way which promotes the industry and profession
41
What tribunals are you aware of?
1. RICS Disciplinary Tribunal
- For members alleged to have violated ROC
2. RICS Independent Dispute Resolution Service (DRS)
- DRS provides a range of dispute resolution services
3. Adjudication
4. Arbitration
5. RICS Expert Determination
42
When might the land tribunals be involved in a dispute?
- Cases relating to rights, responsibilities, obligations associated with land, property ownership, leases, and other issues within the built environment
43
What are the differences between conflict avoidance and dispute resolution?
Conflict Avoidance
- Measures taken to foresee and prevent conflict before it arises
Dispute Resolution
- Mechanisms in place to resolve disputes after they arise
44
What is a Scott Schedule and when is it used?
- Used in disputes to clearly outline and organise claims, counter claims, issues between parties, negotiations, and settlement
- Table like format
- Property disputes, I.e dilapidations
- Insurance claims
- Ajudication and arbitration
45
Explain the RICS Conflict Avoidance Pledge?
- Promote collaboration
- Encourage early intervention
- Improve communication
- Provide support and guidance
46
What RICS guidance relates to Conflicts of Interest for dispute resolvers?
- RICS Professional Standard on Conflicts of Interest 2017
- RICS Dispute Resolution Standards for Disputes Arising from Conflicts of Interest
47
Explain the Thomas Kilmen Model to me?
- Tool used to assess how individuals typically respond to conflict
Assertiveness and Cooperativeness
- Competing (High Ass / Low Coop)
- Accommodating (Low Ass / High Coop)
- Avoiding (Low Ass / Low Coop)
- Collaboration (High Ass / High Coop)
- Compromising (Moderate Ass v moderate Coop)
48
What role does clear communication play in conflict avoidance?
- Clear contract documents
- Relationship building / collaboration
- Clear duties and responsibilities
- Early warnings
- Record taking
- Prevent misunderstandings
- Respectful relationships
49
What are the key components of an effective dispute resolution clause in a contract?
- Clear definitions of disputes
- Dispute resolution procedures
- Timeframes
- Cost allocation
- Appointment of 3rd parties
50
How can risk allocation in contracts impact the likelihood of disputes arising?
- Clear duties and responsibilities
- Accountability
- Team working and collaboration
- Fairness and risk distribution
- Clauses for breach
- Flexibility
51
How can conflicts arising from differing site conditions be effectively managed?
- Clear and comprehensive contract clauses
- Detailed site investigations and surveys
- Prompt rectification
- Provisional sums and contingencies
- Effective communication and collaboration
- Documenting changes and decisions
- Dispute resolution mechanisms
52
What are the various methods of Dispute Resolution in a JCT contract?
- Negotiation (before dispute arises)
- Mediation
- Adjudication
- Arbitration
- Litigation (last resort)
53
What RICS guidance is available for Conflict Avoidance and Dispute Resolution?
- RICS Professional Standard on Conflicts of Interest 2017
- RICS Black Book Practice Information on Conflict Avoidance and Dispute Resolution in Construction
- RICS Guidance on Standards for Dispute Resolution acting as Dispute Resolvers
- Mediator
- Ajudicator
- Arbitrator
