Conflict Avoidance & Dispute Resolution

Question 1

What is a conflict?

Answer 1

• Is where two parties have incompatible interests or views.

Question 2

When do disputes arise in your role?

Answer 2

• Payment delays, Service Charge disputes, repairing obligations disagreements, PPM & reactive repair delays and poor communication

Question 3

What can you do if negotiations break down?

Answer 3

• Escalate to ADR in line with lease provisions.

Question 4

What is a conflict of interest?

Answer 4

• Where two parties have competing interests, or where a party’s personal interest conflicts with that/those of their clients.

Question 5

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

Answer 5

• That conflicts should be identified and managed as early as possible and services should be withdrawn unless written informed consent is obtained, you still retain the ability to provide diligent service, and an information barrier is in place.

Question 6

Give examples of ways that conflict can be avoided.

Answer 6

• Clear Terms of Engagement
• Provide regular clear communication
• Carry out a Conflict-of-interest check
• Good record keeping and audit trails

Question 7

Why is good management important?

Answer 7

• Reduces risk of disputes
• Builds trust and confidence with clients
• Improves efficiency
• Identifies issues early on

Question 8

What are the benefits of clear contract documentation?

Answer 8

• Provides clarity as to expectations, rights and obligations
• Minimises risk from misinterpretation

Question 9

What is partnering or alliancing?

Answer 9

• Building co-operation between project partners to share the risk and reward, through team working.

Question 10

Why is good project or instruction management important?

Answer 10

• Proactively managing projects, minimises risk and reduces costs and potential disputes.

Question 11

How can good client management reduce conflict?

Answer 11

• Set realistic expectations, provide regular updates and proactively address concerns.

Question 12

Give examples of good payment practices.

Answer 12

• Payments should be made promptly.
• Invoicing and terms should be transparent.

Question 13

How can good record keeping avoid conflict?

Answer 13

• Keeping detailed records provides evidence in disputes, which can help them be resolved retrospectively.
• Demonstrates compliance and protects in claims of negligence.

Question 14

How do reporting and proactivity reduce conflict?

Answer 14

• Early identification of risks.
• Transparency with clients, helping to avoid conflicts.
• Builds trust.

Question 15

What are the three pillars of dispute resolution?

Answer 15

• Negotiation
• Mediation/conciliation
• Adjudication

Question 16

Who introduced the term “the three pillars of dispute resolution”?

Answer 16

• Professor Green of Boston University

Question 17

Give examples of the pillars of dispute resolution.

Answer 17

• Negotiation – lease renewal
• Mediation/conciliation – service charge disputes
• Adjudication – construction payments disputes

Question 18

How do mediation and conciliation differ globally?

Answer 18

• Mediators facilitate negotiation.
• Conciliation is more directive, may propose solutions.

Question 19

Why is it important to be aware of the difference between mediation and conciliation?

Answer 19

• Helps navigate international projects
• Ensures cultural and legal compliance

Question 20

What is Alternative Dispute Resolution (ADR)?

Answer 20

• It is an alternative to litigation and includes Mediation, Conciliation, Adjudication, Independent Expert and Arbitration.

Question 21

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

Answer 21

• Less time consuming, less expensive, confidential and can protect business relationships.

Question 22

Tell me about a conflict of interest check you have carried out.

Answer 22

• Checked with internal stakeholders for conflicts of interest at Dovercourt. I identified that TFP (interested party) had a historic commercial interest in the outgoing tenant’s business. I made my firm aware of this connection. They were happy to continue negotiations. This was documented and recorded on the file.

Question 23

What would you do if you identified a perceived/actual conflict of interest?

Answer 23

• Disclose it immediately.
• Determine whether I was still confident I could proceed fairly and if not decline the work.
• If I could then seek informed consent from all parties and document the decisions.

Question 24

Can you tell me about any RICS guidance relating to conflicts of interest?

Answer 24

• Conflicts of Interest: UK Commercial Property Market Investment Agency (2024)

Question 25

What is the practice of dual agency/double dipping?

Answer 25

* This is where the agent works for both the tenant and the landlord, getting fees from both.

Question 26

Can you tell me about any recent RICS guidance relating to dual agency/double dipping?

Answer 26

* It must not be undertaking under any circumstances.

Question 27

What is the difference between an arbitrator and an independent expert?

Answer 27

* An arbitrator reviews the evidence submitted by both parties to provide a binding decision. The arbitrator cannot be sued and is governed by the Arbitration Act 1996. * An independent expert reviewed the evidence submitted by both parties to provide a binding decision but also considers their own knowledge and experience. The IE can be sued and is governed by the lease.

Question 28

Can you tell me about mediation/conciliation/adjudication?

Answer 28

* Mediation is neutral and facilitates discussion between two parties to come to a mutual decision. It is confidential, informal, without prejudice and non-binding. * Conciliation is similar to mediation, but the third party can make a binding recommendation. * Adjudication is where a third party determines a resolution. It is binding and enforceable in Court.

Question 29

What governs dispute resolution during insolvency or bankruptcy proceedings?

Answer 29

* Insolvency Act 1986 * Insolvency Rules 2016

Question 30

What is a Dispute Review or Recommendation Board (DRB)?

Answer 30

* It is an expert panel engaged at the start of the project to manage disputes proactively. Non-binding.

Question 31

What is a Dispute Adjudication Board (DAB)?

Answer 31

* It’s an expert panel engaged at the start of the project to manage disputes proactively. They make formal binding decisions. * Used in International contracts.

Question 32

What are the relevant timescales for adjudication?

Answer 32

* The adjudicator has 28 days from issue of the referral to issue a decision. * Can be extended by 14 days with agreement.

Question 33

Which Act governs adjudication?

Answer 33

* Housing Grants, Construction and Regeneration Act 1996

Question 34

What is the basic principle of adjudication?

Answer 34

* Pay now, argue later. Protects cash flows and prevents delays to projects.

Question 35

What claims is adjudication appropriate for?

Answer 35

* Construction disputes. Pay-now argue later principle.

Question 36

What is the aim of adjudication?

Answer 36

* To provide quick, cost effective and binding decisions.

Question 37

Explain the various adjudication services provided by RICS.

Answer 37

* RICS has a panel of adjudicators that it can appoint.