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Is Mediation the Answer for Public Sector Bodies in Dispute?

Tue, 13 April 2010

Is Mediation the Answer?

 

Bob Entwistle

Bob is a past member of ACES and an accredited RICS mediator this article is based on a short presentation and discussion at the Heart of England Branch

 

It would be most surprising if in your role as a property adviser to a public authority you are not involved in any matters that are in dispute. You have possibly considered various means of resolving disputes such as arbitration, adjudication or litigation  but have you considered mediation as an alternative way of resolving disputes?

In 2008 the RICS decided that it would be helpful to train and provide accreditation to mediators with a background of professional knowledge regarding property matters. Such mediators would understand the terminology and nature of a property dispute but their role as described below would be very different from that of an arbitrator or expert.

What are the advantages of using mediation as an alternative means of dispute resolution?

  • It is usually far quicker and at a much lower cost than other methods
  • The success rate for mediations settled on the day is 70 to 80% with a substantial numbers of others resolved soon afterwards.
  • The process is informal and flexible enabling wider issues to be considered and business relationships to be maintained
  • The process is confidential to the parties and without prejudice to the use of other methods if it fails.

What is the role of the mediator?

  • The mediator is a neutral, trusted and respected facilitator who does not advise the parties their role is to enable the parties to reach an agreement that is acceptable to both of them
  • The mediator will help to clarify and prioritise the issues, crystallise needs, reality check and assist the parties in looking for solutions that could form the basis of agreement.

Mediation can be used in relation to a very wide range of different disputes for example between neighbours or in the workplace but the following list may be of particular interest to you:-

  • Compulsory purchase and compensation issues
  • Construction disputes of all sizes
  • Boundary disputes
  • Landlord and tenant disputes on dilapidations, service charges, rent review or lease renewal

There are a few situations in which mediation would not be appropriate eg if a party is seeking an injunction or to set a legal precedent but where neither of these applies mediation may well produce a more acceptable solution for the parties than for one of them to 'win' the case but often either at greater cost than reward either financially or in the damage to the relationship with the other party. If parties pursue litigation the court will wish to know why they did not seek to resolve their dispute through litigation and even if a case is 'won' the court may decide not to award costs if it considers that mediation should have been tried first.

It is helpful if the parties choose mediation at an early stage in a dispute but it can be used at any stage prior to an alternative. Ideally mediation should take place at a venue that is neutral to the parties. It is important for the parties to be represented by a person with authority to settle and they can be accompanied by professional advisers. The mediator will usually make arrangements by telephone but not meet the parties until the mediation itself. Each party will make an opening statement after which the mediator will usually meet with them separately in order to better understand their interests and needs and then shuttle to the other party disclosing only what the first party is willing to disclose. It is essential that any offers or counter offers that may emerge through this process are owned by the parties.

Members of the Heart of England branch with experience of mediation described the process as demanding but worthwhile in producing a satisfactory outcome. Increasingly public authorities are having to look at different cost effective ways of delivering services why not give mediation a try on one or two of the disputes on your desk if it works it will free up your time and that of your professional staff to deal with other matters? 

 

 

Dispute Mediation

Mediation is a practical yet sophisticated process designed to address the real issues and obstacles behind conflict in reaching a commercially viable solution.

Why mediate?   >

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