Conflict Avoidance

Question 1

What is a conflict?

Answer 1

A conflict is a situation where two or more parties have differing interests, objectives or views that cannot easily be reconciled

Question 2

When do disputes arise in your role?

Answer 2

• When trying to balance my clients interests and objectives with those of tenants. • Negotiations • Rent reviews • Property management related matters

Question 3

What can you do if negotiations break down?

Answer 3

It depends on the type of negotiations. • First I would assess why the negotiations have broken down and what my clients fall back position is, this may give room to give in the negotiation • If this still doesn’t change anything, I would report back to my client for further instructions. Following their instruction I would explore alterative options such as: ○ Explore alternative parties ○ Consider ADR methods

Question 4

What is a conflict of interest?

Answer 4

Where a member of firm’s independence and impartiality is threatened due to the existence of a conflict between two parties

Question 5

What do the RICS Rules of Conduct say about avoiding conflicts of interest?

Answer 5

Rule 1 - members and firms must be honest, act with integrity and comply with their professional obligations including obligations to RICS Rule 5 - members and firms must act in the public interest, take responsibility for their acts and act to prevent harm and maintain public confidence in the profession.

Question 6

Give examples of ways that conflict can be avoided.

Answer 6

• Clear, concise, careful drafting of a contract • Managing all parties’ expectations • Understand clients objectives at the outset, sign terms of business/engagement

Question 7

Why is good management important in avoiding conflict?

Answer 7

Helps mitigate conflicts by having good processes, tools and skills in place

Question 8

What are the benefits of clear contract documentation?

Answer 8

• Reduces chances of dispute • Everyone is aware of their obligations

Question 9

Why is good project or instruction management important?

Answer 9

• It keeps parties informed of what is going on • Helps keeps parties accountable

Question 10

How can good client management reduce conflict?

Answer 10

• Setting clear expectations through Terms of Engagement • Maintaining regular and transparent communication • Managing expectations realistically • Documenting advice to avoid misunderstandings

Question 11

Give examples of good payment practices.

Answer 11

• Pay on or before the due date • Invoice with realistic timescales for payment

Question 12

How can good record keeping avoid conflict?

Answer 12

• It reduces the chances of misunderstanding • Also provides for good audit trails to prove statements of fact

Question 13

How do reporting proactivity reduce conflict?

Answer 13

• Ensures that parties are kept up to speeds with progress / updates • Allows for feedback and adjustments

Question 14

What are the three pillars of dispute resolution?

Answer 14

• Negotiation • Mediation • Adjudication

Question 15

Give examples of negotiation in terms of dispute resolution.

Answer 15

• Lease terms • Rent Reviews • Lease renewals

Question 16

Give examples of mediation in terms of dispute resolution.

Answer 16

• Arbitrator/independent expert for rent reviews • PACT for protected lease renewals • Mediator for dilapidations disputes

Question 17

How do mediation and conciliation differ globally?

Answer 17

• Mediation - mediator facilitates discussions but does not suggest outcomes • Conciliation - conciliator may actively propose solutions

Question 18

What is Alternative Dispute Resolution (ADR)?

Answer 18

Dispute resolution processes and techniques that all outside the scope of court litigation

Question 19

Why might you prefer to pursue ADR rather than litigation through the Courts?

Answer 19

• Quicker • Informal • Greater opportunity for negotiation • Lower costs • Better decision making - made by experts not a judge • Can be confidential

Question 20

Can you tell me about any other types of ADR?

Answer 20

• Arbitration • Independent Expert • PACT • Mediation

Question 21

What governs dispute resolution during insolvency or bankruptcy proceedings?

Answer 21

Insolvency Act 1986

Question 22

Explain what a Calderbank letter is?

Answer 22

• It is a written offer to settle on a dispute on a without prejudice save as to costs basis. • Must be a genuine offer • Gives a time limit (21 days)

Question 23

What exams do surveyors need to pass to become an Arbitrator?

Answer 23

Qualify and pass the Chartered Institute for Arbitrators Exams

Question 24

What form of Arbitration is used for Lease Renewal Disputes?

Answer 24

PACT

Question 25

What must an Expert Witness Provide Prior to Starting their role?

Answer 25

A statement of truth and confirmation that they will act impartially and objectively

Question 26

What are the disadvantages of using expert witness process?

Answer 26

• Adversarial (can damage professional relationships) • More limited to powers to allocate costs compared with arbitrator

Question 27

What does it mean for a surveyor to act as an Advocate?

Answer 27

They are representing their client at a tribunal hearing, they have a duty solely to their client but are obliged to ensure that the integrity of the court is respected

Question 28

What are the differences between an arbitrator and independent expert?

Answer 28

DEAN LOG Disclosure: Arbitrator can disclose – Ind Expert cannot. Evidence: Arbitrator can only use evidence provided – Ind Expert can obtain own evidence Appeal: Limited right to appeal – Ind expert no right. Negligence: Arbitrator NOT liable for negligence and cannot be sued – Ind Expert can be liable and be sued (this is clear because Arb can only use evidence provided, hard to be negligent with evidence provided). Law: Arb – Arbitration act 1996 – Ind Ex – no law guidance them Outcome: Arbitration awards costs – Ind Expert determines outcome Guidance: GN on Surveyors acting as Arbitrators in Commercial property rent reviews (2013) GN Independent expert determination (2016)