Mediation - Recommended Clauses

RECOMMENDED CLAUSES

FUTURE DISPUTES

For contracting parties who wish to have future disputes resolved by mediation by the Building Disputes Tribunal the following clauses are recommended for inclusion in building and construction contracts. The words in square brackets should be deleted/completed as appropriate

Mediation only

“In the event of any dispute or difference arising out of or in connection with this contract, or the subject matter of this contract, including any question about its existence, validity or termination, the parties shall refer such dispute to mediation by the Building Disputes Tribunal (BDT) in accordance with BDT’s Agreement to Mediate and Standard Terms of Engagement which procedures and rules are deemed to be incorporated by reference into this clause.

If the parties are unable to agree upon the identity of a mediator within 5 working days from the date upon which notice of the dispute is given, then the mediator shall be appointed by the Building Disputes Tribunal upon the application of any party.”

Mediation as a Condition Precedent to Arbitration

“In the event of any dispute or difference arising out of or in connection with this contract, or the subject matter of this contract, including any question about its existence, validity or termination, the parties shall first refer such dispute to mediation by the Building Disputes Tribunal (BDT) in accordance with BDT’s Agreement to Mediate and Standard Terms of Engagement which procedures and rules are deemed to be incorporated by reference herein.

If the parties are unable to agree upon the identity of a mediator within 5 working days from the date upon which notice of the dispute is given, then the mediator shall be appointed by BDT upon the application of any party.

If the dispute is not settled by mediation within [ x ] working days of service of notice of the dispute by any party, or such further period as the parties agree in writing, the dispute shall be referred to and finally resolved by arbitration under the Arbitration Rules of the Building Disputes Tribunal which Rules are deemed to be incorporated by reference into this clause.”

EXISTING DISPUTES

If a dispute has already arisen and there is no agreement between the parties to refer the dispute to mediation, the parties may enter into an agreement for those purposes and the following clauses are recommended. The words in square brackets should be deleted/completed as appropriate.

Mediation only

“[Name of first party] and [Name of second party and Ors] hereinafter referred to as the parties are parties to [define legal relationship] entered into on or about [enter date].

The parties have agreed that all matters in dispute between them shall be referred to mediation by [Name of Mediator] of the Building Disputes Tribunal in accordance with the Building Disputes Tribunal’s Agreement to Mediate and Standard Terms of Engagement which procedures and rules are deemed to be incorporated by reference herein.

[if the parties are unable to agree upon the identity of a mediator within five (5) working days from the date of this agreement, then the mediator shall be appointed by the Building Disputes Tribunal upon the application of any party.]”

Mediation as a Condition Precedent to Arbitration

“[Name of first party] and [Name of second party and Ors] hereinafter referred to as the parties, are parties to a contract entered into on or about [enter date].

The parties have agreed that all matters in dispute between them shall first be referred to mediation by [Name of mediator] in accordance with the Building Disputes Tribunal’s Agreement to Mediate and Standard Terms of Engagement which procedures and rules are deemed to be incorporated by reference herein.

[if the parties are unable to agree upon the identity of a mediator within five (5) working days from the date of this agreement, then the mediator shall be appointed by the Building Disputes Tribunal upon the application of any party.]

If the dispute is not settled by mediation within [ x ] working days of the date of this agreement, or such further period as the parties agree in writing, the dispute shall be referred to and finally resolved by arbitration under the Arbitration Rules of the Building Disputes Tribunal which Rules are deemed to be incorporated by reference herein.”

An Authorised Nominating Authority
under section 65 of the Construction Contracts Act 2002