What is Mediation?
Also, mediation is evaluative. In the Mediation sessions, we analyse the issues and relevant norms, which is also known as “reality-testing”, without expressing opinions, giving prescriptive advice or making decisions for the parties.
As used in law, mediation is a form of ADR (alternative dispute resolution), a way of settling disputes between two or even more parties with concrete results. Typically, the mediator, a third party, assists the parties in negotiating a settlement. The term “mediation” refers to any situation where a third party assists others to reach an agreement.
Also, participation is voluntary. The mediator is a neutral third party, facilitating rather than directing the process.
If you have any dispute with a builder over the work that he did for you, the PAP (pre-action protocol) for construction and building disputes could be what you are looking for to reach a suitable agreement without having to go to court then you should consider mediation.
The PAP for construction and building disputes sets certain standards in which the parties of a construction or building dispute are required to observe before the proceedings of the court are issued. The goal of the protocol is encouraging the parties exchanging information during an early stage. Another aim is to consider using a suitable form of ADR instead of court action, which can be emotionally draining and unnecessarily expensive.
Following the protocol steps, the claimant allows the defendant to understand fully nature of the claim that has been made against them. Based on that information, they can make a decision on how to react at an early stage.
The protocol objective is to make sure that the parties explore all the alternative ways to legal action and they meet in an effort of ironing out their differences without having to enter into formal legal proceedings.
The Protocol applies to every engineering and construction dispute. That includes professional negligence claims against quantity surveyors, engineers, architects and builders. However, a claimant isn’t expected to abide by the protocol in these circumstances below.
When proceedings of the court are needed to enforce an adjudicator’s decision as to whom the dispute has been referred in accordance with section 108 of the Construction Act 1996.
Where the claimant is seeking summary judgment in accordance with Part 24 of the CPR (Civil Procedure Rules).
Where proceedings of the court include an interim injunction claim
Where the dispute is relating to issues that are identical or substantially the same as the ones that have typically been the subject matter of an adjudication that is recent under the Construction Act 1996, or even some other formal ADR (alternative dispute resolution) procedure.
The Letter of Claim – According to the protocol, in a building dispute, the first action you should take is notifying the defendant (builder) of your claim. The claimant does this by sending to all proposed defendants a letter of claim before starting court proceedings. The protocol clearly specifies the content of the letter. However, there could be terms in the service contract between the builder and you relating to complaints, which might take priority over the protocol.
The Acknowledgement of the Defendant – within 14 days of receiving the letter of claim, the defendant should acknowledge receiving it in writing. At this stage, the defendant can provide the address and the name of their insurer to the claimant. If the defendant does not acknowledge receiving the letter of claim, the claimant has a right to start court proceedings without complying with the protocol. Also, they could request an extension to the normal time that is specified to send an acknowledgement. It is wise that you think very carefully before agreeing to that.
Defendant’s Response – If the defendant acknowledges receiving a pre-action letter, they must make a decision on the response they want to issue.
Objection to the Jurisdiction of Court or the Named Defendant – The letter of claim recipient has 28 calendar days, after receiving it, to raise an objection. It can be on these three grounds:
The defendant who is named is the wrong one
The matter is to be referred to arbitration
The court lacks jurisdiction
The objection should be in writing and specify the section of the claim where the objection relates. Also, it should set out the grounds that are relied on. Where appropriate, if known, it should name the correct defendant. If the defendant lodges an objection as aforementioned, the defendant’s response letter is not needed.
The Process of Mediation
The option of legal action should be considered as a last resort. This even applies when you’re locked into a building, engineering or construction dispute. The pre-action meeting represents the last chance to try and come to an agreement with the other party before the proceedings start sailing into the litigious area.
After exchanging the letter of response and claim, the pre-action meeting is often the step that follows. It is an opportunity for the parties to talk about their grievances before commencing any formal legal action. The two parties have an opportunity of airing their complaints, with the hope to settle matters before taking things through a court case that will be expensive.
A meeting between the two parties should be held no more than 28 calendar days after the claimant receives the defendant’s response letter. If the defendant issues a counterclaim, the claimant will have to respond to this within 14 calendar days and substantive response within a total of 28 days.
If you receive a response that is evasive or unsatisfactory, you could choose to take court action. At this stage, it’s wise that you look for legal advice from a legal practitioner. In the case where they have written a well-considered response, you must advance to the pre-action meeting phase.
Whatever points both parties may dispute, there is no side that is expected to view litigation as the option that they prefer. The pre-action meeting can act as the initial step to ensure that litigation can end quickly, or even avoided altogether.
Pre-action meeting’s purpose is for both parties to talk about the dispute and know its root, aiming towards obtaining a resolution that doesn’t involve the court. If that goal is not reached, the meeting can act as a platform for the parties to discuss litigation details that might occur for it to be well conducted.
More than one pre-action meeting might be required if the first one is unsuccessful. Also, it must be considered whether ADR would be a better option.
Both parties involved in the engineering or construction dispute should have a representative when attending the pre-action meeting. In case the party is one person, he or she will be the representative. In a scenario where a party is a large group (for instance, a company), the representative should be from that company.
Other parties may attend the meeting(s) with the aim of facilitating the discussion. Usually, these are specialists on the kind of dispute that is taking place. If one of the sides needs an expert to be present at the meeting, they should first get the approval of the other party.