Conflict Avoidance

Question 1

What methods of dispute resolution are you aware of?

Answer 1

• 3 main methods:
• Negotiation- the problem-solving efforts of the parties themselves
• Mediation or conciliation- a third party intervention which does not bind the parties to a decision but assists them to resolve difficulties
• Adjudication- an outcome is determined by a third party, such as litigation or arbitration

Question 2

What methods of alternative dispute resolution are you aware of?

Answer 2

• 3 main methods:
• Mediation
• Arbitration
• Independent Expert Determination

Question 3

What are the benefits of alternative dispute resolution?

Answer 3

• Speed
• Informality
• Greater opportunity for negs
• Cheaper than litigation
• A surveyor makes the judgement not a judge
• Confidentiality

Question 4

What would you do if a conflict was identified?

Answer 4

• 3 step process as per RICS Global Pro Statement on CoI 2017:
  1. Conflict Avoidance, once I had full facts I would consider whether the conflict is irresolvable because my impartiality had been compromised or whether CoI can be managed
  2. Provide written advice to both parties with an explanation of the CoI and seeking informed consent if you wish to proceed
  3. Manage the conflict and set up relevant information barriers as per your agreement from client(s)

Question 5

Would you ever proceed with an instruction if a conflict was identified?

Answer 5

• Yes, however only if I felt as though I could still act impartially despite the conflict and only if informed consent was provided by my client(s).

Question 6

How does mediation work? What is the intended outcome?

Answer 6

• Involves use of a neutral mediator who facilitates discussions between the two parties to explore whether a solution can be found.
• Confidential and informal process
• Mediator has no decision-making authority and cannot impose a resolution upon the parties
• RICS Guidance Note in Mediation, 2014

Question 7

How does arbitration work? What is the intended outcome?

Answer 7

• Arbitrator appointed in a quasi-judicial role
• Parties are bound by the decision
• Arbitrators have specialist knowledge of the subject area
• Cannot be sued for negligence
• Can be over-ruled by the Court of Appeal
• Fast, cost-effective, and confidential
• Governed by Arbitration Act 1996

Question 8

How does independent expert determination work? What is the intended outcome?

Answer 8

• Independent expert appointed by the two parties
• Parties are bound by the decision
• Specialist knowledge of the subject area
• Can use their own evidence to decide upon the award
• Can be sued for negligence
• Offers speed and specialist knowledge

Question 9

What are some of the ways to avoid disputes?

Answer 9

• Clear and concise drafting of documentation
• Proactive risk analysis
• Managing all parties’ expectations
• Negotiating carefully and transparently
• Keeping good records with sufficient detail

Question 10

Why is it important to carry out a conflict of interest check before accepting an instruction?

Answer 10

To ensure I am able to retain my professional competency as per the RICS Rules of Conduct