Conflict Avoidance

Question 1

What is a conflict?

Answer 1

• Arises during failure to comply with contractual obligations
• Important to follow the hierarchy of avoidance, management, and resolution of conflicts

Question 2

What is conflict avoidnace

Answer 2

• Clear, concise and careful drafting of the contract
• Adopt proactive conflict avoidance risk e.g. misinterpretation
• Manage parties’ expectations, understand their objectives, and communicate clearly
• Keep good records of documents and communication

Question 3

What are the 3 main process in resolving disputes

Answer 3

1) Negotiation – problem solving efforts of the parties themselves

2) Mediation or Conciliation – a third party intervention which assist in resolving difficulties.

• Not a binding decision.

3) Adjudicative Process – e.g. litigation or arbitration.

Final outcome is determined by a third party.

Binding Decision on both parties

Question 4

Alternative Dispute Resolution (ADR)

Answer 4

These are dispute resolution processes and techniques that fall outside the scope of court litigation

Advantages include:

 Speed – less time consuming than court proceedings
 Informality – outside a court
 Greater opportunity for negotiation
 Cost – less money spent on professional fees for litigation
 Quality of decision making – outcome can be made by a surveyor rather than a judge
 Confidentiality

Question 5

Forms of ADR:

1) Mediation

Answer 5

1) Mediation
* Comprises a neutral mediator who facilitates discussions between both parties to explore a solution
* Confidential and informal
* ‘without prejudice’ basis
* Not a legally binding decision
* RICS Guidance note in Mediation, 2014

Question 6

2) Arbitration

Answer 6

• Appointed in a quasi-judicial role in accordance with the Arbitration Act 1996.
• Parties are bound by the decision
• Have specialist knowledge in the area and cannot be sued for negligence
• Decision can be over-ruled by the Court of Appeal
• Fast, cost-effective and confidential solution to the dispute
• Surveyors can act as an arbitrator having passed the Chartered Institute of Arbitrators exams
• PACT (Professional Arbitration on Court Terms) used for lease renewals

Question 7

3) Independent Expert Determination

Answer 7

• Independent Expert is appointed by both parties (or by the President of the RICS)
• RICS Guidance Note on Independent Expert Determination, 2016
• Both parties are bound by the decision, based on evidence provided by both parties
• Can also use their own opinion and evidence
• Quick and provides specialist knowledge in the solution

Question 8

What is early neutral evaluation?

Answer 8

• Use of an independent person, experienced in the subject matter of the dispute, to investigate and give their non-binding opinion

Question 9

Acting as an Expert Witness

Answer 9

• When a surveyor provides evidence to a judicial or quasi-judicial body
• RICS Practice Statement: Surveyors acting as Expert Witnesses, 4th Edition, 2015
• Primary duty of care to the court or other dispute resolution panel (not the client)
• A surveyor should only accept instructions to act if they have knowledge, experience, qualifications, appropriate training and no conflicts

Question 10

Acting as an Advocate

Answer 10

• RICS Professional Statement: Surveyors Acting as Advocates, 2017
• Surveyor acting for a client as an advocate, represents their client at the judicial hearing
• Duty is solely to the client
• Must act with integrity and be competent

Question 11

RICS Guidance Note ‘Surveyors Acting as Expert Witnesses’, 4th Edition, 2023,

Answer 11

This comprehensive Mandatory guide is written for surveyors who provide expert evidence to be relied upon in civil proceedings before a wide range of tribunals.
This document:
* Explains the need for clear instructions and terms of engagement
* Gives guidance on what to do in situations of conflict of interest
* Outlines the written report format
* Clarifies the differences between the roles of expert and advocate
* Helps remove pressure upon experts to support their clients’ cases irrespective of their honest professional opinion

Question 12

What is the RICS guidance on conflicts?

Answer 12

• RICS Gloval Professional Statement on Conflicts of Interest, 2017
• Defines the type of conflicts
  o Own interest
  o Party conflict
  o Confidential information conflict

Question 13

Conflicts of Interest – UK Commercial Property Market Investment Agency, 2017

Answer 13

• Dual agency
  o Cannot act for a purchaser and a seller ‘double dipping’
• Multiple instructions
  o ToE state if exclusive or non-exclusive basis
   Exclusive – cannot advise other parties
   Non-exclusive – need informed consent from all clients and information barrier. Need to inform the vendor also.

Question 14

How would you run a conflict-of-interest check?

Answer 14

• Check client entity and address
• Check property address
• Internal client management system – salesforce
• Review any conflict or potential conflict and assess next steps

Question 15

How can you avoid conflicts?

Answer 15

• Clear and concise terms of engagement, leases, contracts
• Accurate record keeping and processes
• Proactive conflict checks
• Information barriers

Question 16

Can you give me an example of common conflicts/disputes that may arise and how these can be mitigated?

Answer 16

• Failure to comply with contract
• Failure to manage parties’ expectations
• Mitigation
  o Clear scope of services established at the outset of an instruction
  o Record all changes to scope
  o Engage with counterparty clearly and transparently

Question 17

What are the types of ADR?

Answer 17

• Independent expert determination – non-binding opinion
• Arbitration – parties bound by decision
• Mediation – Independent mediator appointed by parties or a nominating body to facilitate resolution, not binding

Question 18

What s an expert witness

Answer 18

• When a surveyor provides evidence to a judicial or quasi judicial body it as an expert witness
• RICS Practice Statement & Guidance Note ‘Surveyors acting as expert witness’ 4th editition 2014 (amended 2023)
• The expert witness primary role and overriding duty of care is to the court or other dispute resolution panel and not to the client even though the client pays the fee.
• A surveyor should only accept instructions to act as an expert witness if they have knowledge experience, qualififications and training appropriate for the instruction and have no conflicts.
• Must provide a statement of truth and confirm they will act impartiatley and cannot cherry pick the details.
• Incentive (contngecny fees) should not be allowed. Gardiner and theobold b Jackson 2018 – success fee is innaporpraite.
• Supreme court in case of Jones v Kany (2011) found EW are not immune from cicil action relating to evidence they provide and can be sued for neglingce.