Alternative Dispute Resolution - Mediation, Arbitration and Adjudication
Introduction to forms of dispute resolution such as mediation, arbitration and adjudication.
Why do disputes happen?
Disputes can and do arise in residential leasehold property. For example, disputes over the sums demanded for service charges, or payments towards extensive fire safety works or for works to a roof or exterior of a building.
This guide explains:
Section 1: The nature of mediation
Section 2: LEASE’s FREE mediation session from start to finish
Section 3: How to take your dispute to LEASE’s FREE mediation service
THE NATURE OF MEDIATION
Why should I be interested in mediation to resolve my dispute?
Because it works. It has a good success rate. It puts you in the driving seat and not relying on the judgment of a court or tribunal over which you have no control. And it is voluntary. You can walk away at any time if you feel progress is not being made. In doing so, you can still reserve your right to go to a court or tribunal.
What are the advantages of mediation?
A court or tribunal case can take months and even years to bring a dispute to an end, and the process can become very costly to the parties, adding to frustration and making relations even worse. It is also less adversarial in that you and the other side are coming together to negotiate and resolve your conflict. Even though you are in dispute, you both seek settlement and are willing to open the lines of communication.
Mediation can be a swifter and less expensive way of sorting out issues. Private and confidential, it can bring to the table matters the parties may prefer to keep away from the courts and tribunals.
There are no ‘winners’ or ‘losers’ in mediation as the mediator does not impose a judgment or result on the parties and mediation can lead to solutions not permitted by court or tribunal proceedings.
Are there occasions when mediation is not appropriate?
It may not be appropriate where there are issues of fraud or where a legal precedent needs to be set.
Do I need professional representation for mediation?
The idea of mediation includes reducing costs, and professional representatives are generally not necessary.
LEASE’s FREE FIRE SAFETY MEDIATION SESSION FROM START TO FINISH
Where will the mediation usually take place?
It will usually take place at a venue provided by your landlord. Facilities will be available at the venue in order that any eventual agreement reached between the parties can be typed up for signing and a copy then provided to each party.
How long would the mediation session last?
The mediation is scheduled to last a maximum of four hours.
How is a typical mediation session structured?
Step 1: The mediator will open the session by explaining the procedure and ground rules which govern the etiquette and conduct of the parties.
Step 2: The mediator will meet each party first separately and give them a chance to summarise the issues from their own perspective so that the mediator can fully understand their concerns.
Step 3: The parties will then enter into a joint session with the mediator, unless one of them is not comfortable about meeting face to face. Each will be invited to present their views of the dispute, uninterrupted by the other; the mediator will summarise the issues and then encourage both sides to come up with possible, mutually acceptable, solutions.
Step 4: Where agreement is reached, the mediator will help the parties to draw up an agreement to be signed by them.
What happens if there is no agreement?
Now and again what may happen is that some but not all of the matters in dispute are resolved. Even then, issues may have been narrowed down and each side will have gained a better understanding of the other side’s concerns and interests.
There is nothing to stop each party making an attempt at settling after the mediation.
HOW TO TAKE YOUR DISPUTE TO LEASE’S FREE FIRE SAFETY MEDIATION SERVICE
How do I submit a dispute to the LEASE Mediation Service?
Complete the online mediation application form. The completed form should provide a brief statement identifying the issues in dispute
Who will see the information I give LEASE?
The statement will be disclosed to the other side with a view to both sides fully appreciating and understanding each respective viewpoint.
What happens after I submit the online application form?
We will send an electronic copy of your completed application form to the other side in the dispute who will be provided with a link to the LEASE Mediation ‘Respondent’s form’ which will give them the opportunity to state what result they want to achieve from the mediation.
What is the next step once the other side agrees to mediation?
We will liaise with both parties to fix a mutually convenient date for the mediation session to take place.
Who should attend the mediation session?
All parties to the dispute, and for the landlord, someone who has authority to resolve the dispute and to sign any settlement agreement on behalf of the landlord.
How should I prepare for the mediation?
With an open mind and a willingness to listen to the other side. Entering into the mediation in a positive spirit is vital if a satisfactory settlement for all parties is to be reached. It is important that both parties are well prepared. The following matters should be considered by you:
- What do you wish to achieve from the mediation?
- What do you feel the other side wish to achieve?
- What are the strong points on your side?
- And what are the weak points?
- The pros and cons of not settling at the mediation.
- The possible outcomes that would meet your needs and those of the other party.
What are the Ground Rules?
The ground rules establish the tone for the mediation session and are designed to ensure that the focus is on achieving a mutually satisfactory result. We will expect that you and your landlord will agree to conduct the mediation as follows:
- We agree to speak one at a time and not interrupt each other.
- We agree not to attack or use personally-abusive language about the other person.
- We agree to listen with respect to the other side and to try to understand their underlying needs and concerns.
- We recognise that each side is entitled to their own perspective even if we do not agree with it.
- We will focus on the future we would like to bring about and not dwell on what failed in the past.
- We agree to think of solutions that will be acceptable to everyone involved with the problem.
- We agree to make productive use of our time during the mediation to move forward to the fairest and most constructive agreement we can achieve.
- We acknowledge that the mediator is impartial and will not pass judgment on what anyone is saying.
- We agree that we or the mediator can call for a break if we need one.
- We agree that either of us or the mediator can ask for a private side meeting if the need arises.
- We agree that the responsibility for settling the dispute rests with the parties, not the mediator.