Mediation

Mediation is a cost-effective, confidential, and voluntary process where the mediator is the facilitator who assists the parties to come to a negotiated agreement. Mediation concentrates on the parties’ interests rather than on their rights, when often both parties realise that they are partly at fault and wish to resolve the dispute and accept a compromise, as opposed to litigation. Any recorded settlement in a mediation agreement can be enforced as a contract, but if they cannot reach a settlement, they can refer to arbitration or the courts.

A mediator acceptable to all parties is appointed and should act independently, avoid unnecessary expense and comply with the principles of natural justice. The mediator's task is to help the parties identify the issues and options for settlement and look for a settlement that is equitable to all concerned. All relevant documents including specifications, plans, quotations, and written submissions setting out the basis of the complaint and the rebuttal by the other party must be made available to the mediator.

After an investigation, site visits, and discussion with all the parties, the mediator, using trade benchmarks such as this Code of Practice and drawing on experience can apportion responsibilities and instruct rectification work be done. This method can provide a quick and inexpensive outcome with costs shared by both parties, but the decision is not binding and must be mutually agreed to.

Informal resolution of disputes does not necessarily uncover the facts; and as material or installation failures are not necessarily publicly disclosed, improvement can be inhibited.

Mediation does provide the opportunity to ‘move on’ and does not always jeopardize business relationships as litigation invariably does.