Mediation within adjudication for your claim through the Weathertight Homes Tribunal.
If you're making a claim to repair your leaky property through dispute resolution, this information sheet will give you details about the mediation process as an option for lower-value claims.
This information is about mediation for disputes with an estimated repair cost of less than $20,000. If you are looking for mediation within the Weathertight Homes Tribunal adjudication process, see mediation within adjudication.
Mediation is a voluntary and informal process where an impartial person (a mediator) helps people with a dispute work together to find their own solution.
Mediators are professionals focused on helping parties solve problems. You, together with the other people in the mediation, decide your own outcome.
The mediator will help the parties to work out what the issues are, the positions of each party and possible options for resolution.
The mediator will not make a decision for you or anyone else at the mediation, or give legal advice of any kind. Any agreed settlement is binding on those agreeing to it and can be enforceable in the District Court.
There are many advantages to using mediation to solve your weathertight disputes.
- It requires a constructive, co-operative approach.
- Parties can develop and agree on workable and mutually acceptable solutions – often outcomes that could not be achieved at adjudication or court.
- Parties can discuss matters outside the scope of an adjudication hearing.
- Confidentiality applies to anything disclosed or agreed to in mediation.
- Mediation is likely to be less expensive and time consuming than adjudication or court action.
- Even if mediation does not result in agreement, the process of isolating issues and agreeing on facts can help if the claim continues to a hearing.
- The presence of the mediator can ensure power imbalances between parties are minimised.
Benefits and limitations
While mediation has advantages for you and your parties, there are many benefits as well as limitations to the process and the potential outcome.
You will need to consider whether mediation is appropriate for you before going ahead.
- The process is confidential.
- The process is a lot more informal than a Tribunal hearing and allows discussion on a wider range of topics.
- It is often cheaper than going to a Tribunal hearing or to court.
- You have control over resolving your dispute.
- The process can be as stressful as a judicial process.
- It is not helpful where the parties do not participate with respect and in a rational way.
- There are no guarantees of a settlement and avoiding the Tribunal hearing or court action.
- Participation can be futile if you have not clearly identified your position and are not fully committed to the process.
Role of the mediator
The mediator acts as a facilitator, communicator, motivator and scene-setter, creating the appropriate environment for the process to be effective.
The mediator is independent of you and the parties and will not make any decisions, offer legal advice or coerce parties into an agreement.
The mediator will make sure the parties understand what they are agreeing to.
Time limits for mediation
To ensure your claim is not delayed, the Weathertight Home Resolution Services Act sets out time frames that your mediation must stick to.
If your claim is for a standalone house, you have 20 working days for mediation. If your claim is for a multi-unit complex or stand-alone complex, you're allowed 40 working days.
The clock starts once you have signed the referral to mediation form.
You can only extend the time allowed by sending an application to the chief executive of MBIE. You will need mediator support for this.
You may only be granted more time if it is evident that every effort was made by you and parties to settle in the time provided, and that a settlement will occur if further time is allowed.
It is important that claims are resolved as quickly as possible to ensure houses are repaired as quickly as possible.
Mediation is voluntary so there is no legal requirement for people to attend.
However, parties should consider the cost and time involved if mediation is unsuccessful and the claim proceeds to adjudication when making their decision.
You must contact your claims advisor at least 72 hours in advance of mediation if, for any reason, you will not be attending. This allows all the parties to know in advance who will be attending and allows for any necessary re-scheduling.
Many parties choose to participate in mediation so that they have some choice in the outcome. Mediation is about finding a solution that everyone can live with.
For this type of mediation to be effective, it must be conducted face to face.
If you want to reach an agreement, you and the other parties must participate and communicate. Mediation requires good intentions and patience on the part of all parties.
Mediation assumes that all the parties are informed and able to reach agreements that suit their needs. Control of the dispute and the terms of the settlement remain in the parties’ hands.
Preparing for mediation
You must be prepared for the mediation. It is difficult to get the best out of mediation if you turn up on the day without any thought as to how you will present your position.
Before the mediation, make sure you:
- understand the process
- have all the information you need to represent your interests
- have clarified the role of any support people with you
- understand how your support people can help you in the mediation.
You should also consider:
- what you want out of the mediation
- your needs and concerns
- concerns of the other parties
- any potential solutions (keep in mind it may not be helpful to be locked into particular solutions at the beginning of the mediation).
You and your parties must be fully authorised to participate and settle on the day. This could mean if you represent a company or trust, you make sure you have authority to sign an agreement on their behalf.
Make sure you bring along any documents you want to refer to at the mediation. All of these should be shared with the other parties before the mediation happens, so that there are no surprises on the day.
Your assessor’s report is likely to be involved as a document in the mediation. It is a neutral document that you and the parties are able to refer to. Any party can agree or disagree with the report in whole or in part.
Role of representatives
You are the only person who can discuss your needs and priorities and reach agreements.
If you wish to have a representative attend in your place, you need to make sure they have full authority to settle and that you have fully discussed the claim with them before hand.
Settlement proposals can be of an unexpected and unpredictable nature. If representatives are restricted to settling within strict guidelines determined in advance, settlement might not be reached on the day.
Expert and legal advice
You are able to take a building expert or other support person if you wish, but make sure you tell your claims advisor how many people you will have in your party.
You will also need to introduce them to the mediator on the day.
You must make sure people don't wander in and out of the mediation. Your claims advisor will tell you which other parties have indicated that they have support people.
You are allowed to have legal representation at the mediation, however it is not mandatory.
You may also wish to consult a legal representative to prepare you for mediation or have a legal representative available by email or phone to provide advice on any proposed settlement.
Each mediation will be run slightly differently and according to the style and preferences of parties and the mediator.
- The mediator usually starts by giving an introduction. This includes:
- the aims of the day
- how the mediation will progress
- any ground rules to help the mediation move smoothly.
- The mediator will invite all the parties to introduce themselves and give a brief statement on what they feel the main issues are for discussion. This will give an opportunity for each party to hear the others’ perspectives.
- The mediator will help parties to identify issues to discuss. They will ensure all the issues are fully discussed so everyone understands each other’s views.
- Once the issues have been discussed, the mediation will move on to exploring options. These will be evaluated by the parties so a solution can be found that will satisfy as many parties as possible. From these discussions a settlement can be written up.
- You will have the opportunity to discuss matters privately during break-out sessions. The sessions can be with yourself and your representative, with the mediator or with other parties. The mediator will respect anything discussed in confidence.
- While these private meetings are taking place, the mediation will be suspended. Everyone will have the same access to the mediator if they require it.
- All parties will receive a copy of the signed settlement agreement so they know what has been agreed to do to meet any obligations.
- The mediator will also sign a statutory agreement which enables the agreement to be enforced through the District Court.
All verbal or written offers, any discussions that take place during the course of mediation and anything produced solely for the purpose of the mediation will remain confidential.
Any confidential information you provide will not affect your rights if the dispute proceeds to the Tribunal or another court.
The mediator may meet separately with any party and may be offered information that is to be kept confidential from other parties.
The mediator needs to keep a copy of the settlement agreement to forward to MBIE for confidential storage after the mediation.
According to the Act, information may be gathered from settlement agreements for research or educational purposes so long as the parties and specific matters in issue are not identifiable.
You need to enter any dispute resolution process with an open mind and realistic expectations. A settlement can only be reached if you find a mutually agreeable solution with some or all of the parties.
You can choose to apply to the Weathertight Homes Tribunal for adjudication if you cannot reach a settlement in the allowed time and a time extension is not granted.
Adjudication is done through the Ministry of Justice and on paper rather than by a hearing.
Adjudication to resolve your weathertight claim has information about this resolution process.