Conflict avoidance, management & dispute resolution procedures

Conflict of interest
1. Arises when independence and impartiality is threatened due to the existence of a conflict between two clients or a personal interest
  1. conflict avoidance
    1. don't accept instruction in accordance with RICS Rules of conduct
  2. contact management
    1. Accepted and steps agreed and put in place to manage conflict e.g. a chinese wall (info barrier)
      1. solicitors (our company is too small)
      2. seperate team in seperate parts of the building
2. examples
  1. financial interest (commissions)
    1. personal interest (friend),
      1. Family member wanted to view G/head road
      2. Commercial relationships
        The interests of you or your firm
        acting on both sides of a transaction
      3. may also be a personal interest in the property e.g. you live nearby or family owns
      4. must not let personal interest interfere or influence your professional judgement
      5. can act but interest must be declared as well as capacity in which you are acting, for full transparency
      6. state if you will receive any remuneration over and above your fee (e.g. beneficiary)
      7. S 21 EAA 79, interest must be declared in writing at all stages of process, toe's, property particulars & heads of term
    2. referral fees?
Red Book 2014
1. PS2, 4 - Independence, objectivity & conflict of interest & PS2, 5 - Maintaining strict seperation between advisors
2. VPGA 2 - Valuation for secured lending - examples on how to recognise an existing, former or potential conflict of interest with a client, property or borrower where there has been a relationship within the last 2 years
Conflict of interest guidance note 2012
Handling
1. Step 1 - Conflict avoidance
  1. Step 2 - Written advice to both parties
    1. Step 3 - Conflict management
      1. If confirmation and acceptance of proposal is receive, set up info barriers as advised
        Barrier must be robust enough to offer no chance of info passing between 2 parties
        must take reasonable steps to operate an effective barrier
        surveyors acting on 2 sides must be different and physically seperated with seperate teams
        All info regarding instruction must be securely stored
        Firms compliance officer must oversee all actions
        'Double running' describes situation where agents double their fees by acting for both buyer and seller
    2. 1. Disclose nature of conflict, circumstances surrounding it and any other facts, set proposals of how will be dealt with e.g. info barrier
    3. 2. Advise both clients to obtain independent professional advice on handling the conflict from an external professional before proceeding if they have concerns or require independent advice
    4. Request written confirmation from both clients that your firm can act in accordance with the provisions of the proposal
  2. Obtain the full facts, consider whether the conflict is irresolvable and should be avoided or whether it can be properly managed
  3. If it can, decide whether you want to accept or decline
Acting as an expert witness
1. RICS pubilshed Practice Statement 'Surveyors acting as expert witnesses' updated in 2011 to reflect outcome of Jones V Kaney 2011
  1. Supreme court found that expert witnesses are now not immune from civil action in relation to evidence they give in legal proceedings and that they can be sued for negligence
    1. Related to provision of expert evidence in relation to a personal injury claim for post-traumatic stress following a car crash
  2. Experts primary duty of care is to the court or dispute resolution panel, even though the client pays the fee and there is a duty of care to the client and wider public
    1. Expert provides a statement of truth and confirmation that they will act impartially and objectively
      1. Contingency fees (no win no fee) are not allowed
        'Hot tubbing' is where experts are sworn into cases alongside each other and are given the chance to ask each other questions.
Acting as an advocate
1. RICS published Practice Statement ' Surveyors acting as advocates', 2008
  1. Represents client at a judicial hearing/tribunal - like solicitor
    1. Must be competent and act in a way to maintain integrity of judicial process
Dispute Res
1. If you fail to reach an amicable resoution regarding a complaint CHP doesn't reach satisfactory outcome, there are 2 choices for further action
  1. litigation / court following the civil procedure rules
  2. ADR (Alternative dispute resolution
    1. 5 (M A E A UUU (dragonsta din tei)
      1. Mediation
        Use of neutral mediator (middle man) who facilitates discussions and attempts to find solution
        Confidential & informal
        'Without prejudice' basis
        No decision making authority and cannot impose a resolution (think matrimonial)
      2. Arbitration
        Appointment of arbitrator in a quasi-judicial role in accordance with Arbitration Act 96
        Parties bound by the decision
        He will have specialist knowledge of subject area
        Can't be sued for negligence but decision can be over-ruled by the court of appeal on a point of law
        Surveyors can act as an abritrator hving passed Chartered Institute of Arbitrators exams
        PACT (Professional Arbitration on Court Terms) is a form of arbitration used for lease renewal disputes
      3. Expert Determination
        Independent expert with expert knowledge of the subject matter in dispute is appointed by both parties to consider evidence and investigate the dispute
        Both parties are bound by the decision, he can use his own opinion to decide upon the award
        There is an RICS panel of independent experts for service charge dispute resolution
      4. Adjudication
        determines dispute in a contractual process
        commonly used construction payment disputes
        adjudicator must reach decision within 28 days, decision is legally binding
      5. Use of an ombudsman
        Not for profit organisation that confidentially receives, investigates and facilitates the resolution (ombudsman services: property)
        complaint is handled by an investigation officer who will review the case within 6 weeks or receipt and provide a provisional conclusion. Both parties then have 28 days to reply and any comments will be considered when the ombudsman makes final decision.
        Ombudsman can make financial award of upto £25l, if party still not satisfied can go to the relevant court
    2. Advantages
      1. Speed, less time than lengthy court proceedings
      2. Informality, being outside court
      3. Greater scope for negotiation
      4. Cheaper, less money spent on prof/court fees
      5. Quality of decision making - outcome or award can be made by a surveyor rather than a judge

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Conflict avoidance, management & dispute resolution procedures

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