Mediation 4
Builders and Home Owners
We have a specialist team that has many years of experience in mediating claims arising out of building work around . No matter the amount of money involved, building disputes can be very stressful, time-consuming and expensive for both parties.
We provide to our clients a National mediation service and help you impartially reach a settlement by going to court.
Why Mediation is Better than Litigation for building and construction disputes
What is Mediation?
- Mediation is a dynamic, confidential, structured, interactive process in which a neutral, skilled third party helps disputing parties to resolve conflict using specialised communication as well as negotiation techniques.
- Those participating in mediation are encouraged to do it actively. Mediation is a party-centred process; it’s focused primarily on the parties’ needs, interests and rights.
- The mediator uses various techniques in guiding the process in a direction that is constructive and in helping the parties to find their optimal solution.
- Unlike the litigation process, whereby a neutral third party (a judge) will impose a decision on the matter, the mediator and the parties control the mediation process. They decide where and when the mediation takes place, how the mediation is going to be paid for, who will be present and how the mediator is going to interact with the parties
- The mediator is facilitative; he/she supervises the interaction between the parties as well as facilitates open communication. Also, mediation is evaluative. The mediator analyses 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 reach an agreement.
- Mediation has dynamics, timetable, structure that “ordinary” negotiations do not have. The process is confidential, private and enforced by law. Also, participation is voluntary. The mediator is a neutral third party, facilitating rather than directing the process.
The Advantages of Mediation
There are many advantages that binding mediation plus binding mediation offer to the industry of construction as an ADS option. Some of these include the following:
- Mediation is much cheaper than litigation because of the following reasons.
- Most of the mediators specialising in construction and engineering charge by the hour; the mediation is often completed within one or two days.
- Since most of the construction and engineer mediations are conducted within a short period, they take fewer days than litigation. Therefore, the cost of time that you will spend away from your business will be minimal.
- Mediation preparation is far simpler and easier than what is required when preparing litigation.
- Attorneys aren’t necessary; however, they may participate when a party requests.
- In most cases, the mediations are held at the residence that is involved instead of scheduling a visit to a job site and a separate arbitration hearing held at a location that is neutral or litigation held at a jurisdiction court.
- The mediators are well-versed in the dispute issues and can help the parties in the opinion and position reality.
- The mediation process is much faster than litigation – Typically, the cases of construction and engineering litigation can take several months, a year or even longer just to get a trial.
- Mediation allows the chance for parties working together to reach an agreement. It allows them to continue working together to finish the construction project. That usually happens with a great customer referral when the job is done. However, in litigation, most of the time there is a decision or verdict by a judge. Also, the relationship between the parties comes to an end that is unfriendly.
- In mediation, both parties are participants. They can express their concerns and opinions. In litigation, the attorneys of the parties are the only ones representing their party, except when the party is taking the stand and the opposing attorney wants to cross-examine the party.
- Mediation is so informal – If a construction or engineering contract doesn’t recognise an ADR option, mediation can be scheduled by mutual consent of the parties to the contract.
- Mediation is a process that is private. Unlike litigation, mediation is not subject to media attention and public knowledge.
- If certain items have been settled or there’s a full settlement and an agreement written, the agreement is always enforceable in court. If need be, there will not be any appeals process. However, in litigation, you will find several levels of appeals that are available in an ongoing judicial process.
- In mediation, there is no jury. The risk of a large unwarranted award is reduced greatly. That is because the experienced mediator has a full understanding of the construction industry and is a seasoned professional. The mediator cannot be swayed by superficial or emotional arguments.
- In mediation, discovery is limited. That means that the attorneys’ of the disputants (if they are involved in the mediation) rarely pursue the fishing expeditions, which is burdensome and occurs in ordinary litigations.
Pre-Action Protocol
- 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.
- 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.
Steps of the Protocol
- 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 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.
Pre-Action Meeting
- 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.
Pre-Action Meeting's Purpose
- 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.
Who Is Supposed to Attend the Meeting?
- 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. That person should have the power to agree to a settlement or resolution.
- There might be a third party who can be affected by how the dispute ends. If that is the case, then a representative from that third party should be present as well.
- If one of the sides in the dispute has sought legal representation concerning the dispute, then the said legal representation should be present as well. It’s not a strict requirement. However, if you’re deep in any dispute with an angry customer or a construction company, you can benefit greatly from a solicitor guidance.
- If an insurance company is involved in the incident that led to the dispute, then a representative from that insurance firm may attend. It can be the insurer’s legal representative.
- 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.