Mediation

What is Mediation?

Mediation is a consensual, confidential and relatively informal negotiation process in which parties to a dispute use the services of a skilled and independent mediator to assist them to define the issues in dispute, to develop and explore settlement options, to assess the implications of settlement options and to negotiate a mutually acceptable settlement of that dispute which meets their interests and needs.

The Mediator is an independent and impartial person in whom the parties to a dispute repose trust, respect and confidence to assist them to negotiate a settlement of that dispute without giving advice, expressing opinions or making decisions for them.

Advantages of Mediation

The objective of mediation is to enable and empower the parties to negotiate and resolve the dispute promptly, cost effectively and confidentially rather than to have a decision imposed upon them by a judge, arbitrator or adjudicator.

Mediation enables the parties to negotiate flexible and creative solutions which need not conform to strict legal rights or general community standards. 

Generally, all types of disputes are suitable for mediation provided that all parties and their representatives are prepared and committed to negotiate toward settling the dispute in good faith.
 

Co-Mediation

In disputes involving multiple parties/multiple interest groups (generally claims involving more than four parties; i.e. disputes relating to leaky buildings, resource consent/land use, corporate/shareholder issues, neighbourhood/community issues, disputes involving multiple insurers etc), The Building Disputes Tribunal provides a co-mediation service whereby two (or more) mediators work together with the parties to mediate the dispute.

We have found that this service delivers a far more efficient mediation process because it enables the parties to work in various interest groups at the same time with the assistance of a mediator, thus progressing the identification and resolution of matters at issue in a far more cost effective and timely manner.

If you think our co-mediation service would be appropriate and beneficial for the mediation of your dispute, please call one of our Registrars to discuss the additional cost for this service.

 

Our Mediation Services

The role of The Building Disputes Tribunal includes maintaining a panel of highly skilled, respected and experienced Mediators, managing and administering the mediation service, appointing the most appropriate Mediator in any particular case (of course parties are welcome to select and agree upon a Mediator from our panel) and providing support and guidance to the parties, their advisers and the Mediators.

The Building Disputes Tribunal's mediation programme includes a Mediation Agreement complete with a back-to-back Confidentiality Agreement for execution by advisers and support persons to parties to mediations and our Fees and Expenses provisions as Schedules to the Agreement.

The Building Disputes Tribunal's Mediation Agreement is further augmented and supported by our Mediation Protocol. The Protocol is a necessary and important component of our fully administered mediation service because mediation, unlike adjudication, is consensual and not supported or underpinned by legislation.

The Protocol has been drafted to promote and encourage the negotiated settlement and early and cost effective resolution of disputes by mediation. Primarily however, the Protocol provides guidance as to the rights and obligations of all participants under The Building Disputes Tribunal's fully administered mediation service.
 

A fully administered mediation service

Once the parties have applied to The Building Disputes Tribunal for mediation, the administration of the process is taken care of by the Registrars. This means that the parties are not spending time or incurring costs in trying to co-ordinate administrative matters such as the availability of mediators and parties or sourcing and securing a venue. The parties fix the date and we will do the rest and keep the parties and the Mediator fully informed at all times.
 

Standard Terms of Engagement and Mediation Agreements

Our Mediation Agreement has been prepared in consultation with some of the most experienced Mediators and pre-eminent jurists in New Zealand to produce a standard form mediation agreement for use in every mediation undertaken by an Building Disputes Tribunal Mediator.

By using our mediation services and our Mediation Agreement, parties and their advisors know from the outset exactly what their obligations are in relation to all other participants and to The Building Disputes Tribunal, and that the same terms and conditions will apply to each mediation administered by The Building Disputes Tribunal. The objective is to deliver a transparent, consistent and certain process.
 

Co-mediation

In disputes involving multiple parties or multiple interest groups, i.e. leaky building disputes or community, environmental and planning disputes, The Building Disputes Tribunal provides a co-mediation service whereby 2 or more Mediators work together with the parties to mediate the dispute.
We find that this process is far more efficient because it enables the parties to work in various interest groups at the same time with the assistance of a Mediator, thus progressing the identification and resolution of matters in a cost effective and timely manner.

Fixed Fees for mediation based on the amount in dispute

The Building Disputes Tribunal provides a fixed fee mediation service to ensure that the cost of the mediation is proportionate to the amount in dispute. Our base fee includes all advance preparation time and attendances at the mediation by the Mediator for one day (9am to 5pm). If extra time is required on any day then the Mediator's time is charged at the relevant published rate.

The fees for disputes involving amounts greater than NZ$1M may be fixed by arrangement with the Registrar prior to the Mediation Agreement being executed. Consistent with our professional and commercial approach to the delivery of our services, cancellation fees will be charged if a mediation conference date is vacated (whether because of settlement, adjournment by agreement of the parties or withdrawal) at the relevant published rates – our Mediators are experienced and respected professionals – their time is valuable.

To find out more about our mediation service or to arrange for one of our experienced construction mediators to assist with the resolution of a dispute, please contact Building Disputes Tribunal on (09) 486 7143.

 

If you wish to apply to have your Building Dispute resolved by Mediation click here to go to our online application form