Mediation process for homeowners pursuing leaky home repair costs through dispute resolution.
Last updated: 21 March 2016
If you're making a claim through the Weathertight Homes Tribunal, this information sheet gives you details about the opportunity to use mediation within the adjudication process.
This information covers mediation within the Weathertight Homes Tribunal adjudication process.
Mediation in your weathertight claim has information about mediation within MBIE's dispute resolution process for lower-value claims.
You will have an opportunity for mediation with your parties if you make a claim to the Weathertight Homes Tribunal. Mediation can help you clarify issues, resolve conflicts and reach agreement without continuing adjudication to a hearing.
You will need to be prepared to negotiate and possibly compromise with parties. Parties work together to find solutions by looking at their interests.
The mediator acts as a facilitator, communicator, motivator and scene-setter, creating the appropriate environment for the process to be effective. The mediator will not make decisions, offer legal advice or force you and the other parties into an agreement.
When mediation may occur
The Tribunal will discuss with you and other parties whether mediation is appropriate. If so, the Tribunal will issue an order referring the claim to mediation.
The Tribunal will usually set a mediation date at the adjudication’s preliminary conference. The Tribunal cannot force parties into mediation; it is a voluntary process.
The Ministry of Justice (MoJ) case manager will liaise with us to obtain a mediator. We will provide an independent, professional mediator at no cost to the parties.
Your MoJ case manager will arrange the venue and notify you and the other parties of all relevant details.
MBIE and MoJ are not parties to the claim and have no part to play in the mediation negotiations. However, we can arrange for your property assessor to be present at the mediation.
Expectations of mediation within adjudication
Though mediation is voluntary, you should consider the cost and time involved in an adjudication hearing. Many parties choose to participate in mediation so that they have some choice in the outcome.
Effective mediation is conducted face to face. Mediation assumes that all the parties are informed and able to reach agreements they will be able to live with.
Like mediation in dispute resolution, you and the other parties must be fully authorised to participate and settle on the day. For example, if you represent a company or trust, you must make sure that you have authority to sign an agreement on their behalf.
Timeframe for mediation
The Tribunal can set a specific time limit on the time it takes to hold a mediation.
The Weathertight Home Resolution Services Act allows 20 working days for stand-alone claims or 40 days for multi-unit complex claims.
It is important that claims are resolved as quickly as possible to ensure houses are repaired as quickly as possible, and parties can resolve their dispute.
You must attend the mediation on an uninterrupted basis, into the evening if necessary. The mediation is intended to be finished on that day where possible.
You must contact your MoJ case manager at least 72 hours in advance if, for some reason, you cannot attend the mediation. This allows all the parties to know who will be attending in advance and makes sure the process is fair for all.
All discussions and agreements that take place in mediation are completely confidential. All documents created for the purposes of mediation are also confidential.
All attendees at the mediation, including support people, will be asked to sign a document confirming this confidentiality.
The mediator may meet separately with you and the other parties, and may be provided with information that is to be kept confidential from other parties.
The mediator is not able to be called as a witness, referred to or relied on in any other proceedings in the Tribunal. Any information you disclose to the mediator cannot be used in a hearing if your claim is referred back to the Tribunal.
Legal representation or support
You will need to you attend the mediation in person. Only you can discuss your needs and priorities and reach agreements.
If you need to have a representative attend in your place (for multi-unit complex claims), make sure they have the authority to make on the spot decisions and formulate agreements on behalf of the parties they represent.
Any pre-determined limits on authority may deny the representative the opportunity to fully explore options for resolution.
You can bring a legal representative, building expert or other support person to the mediation if you want. You must let your MoJ case manager know how many people you will have with you in the mediation.
You will also need to introduce them to the mediator on the day. People cannot wander in and out of the mediation. Your support people must stay for the duration of the mediation.
The assessor’s report is a neutral document. You or any party can agree or disagree with the report in whole or in part.
You or the other parties can request for you assessor to be available either in person or by phone to answer any questions during the mediation.
Any questions for the assessor should be formulated before the mediation.
Reaching an agreement
You and the other parties will sign a form to withdraw the adjudication claim against relevant parties if a mediation settlement if reached. The mediator will organise this.
The form will be given to the Tribunal and the adjudication will be terminated accordingly.
If you have only settled with some parties in the mediation, then those parties can apply to the Tribunal to be struck out of the adjudication.
The Tribunal will make the final decision on this and the adjudication can then continue with any remaining parties. Parties who have settled may still be required to be present at the adjudication to provide information.
The mediator is required to retain a copy of the settlement agreement and forward it to MBIE for confidential storage after the mediation.
Under the Weathertight Home Resolution Services 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.
Mediation referred to a hearing
If you cannot reach a settlement in the allowed time and a time extension is not granted, the claim automatically refers back to the Tribunal for hearing.
If the mediator believes that you may be able to settle the matter with more time, the Tribunal can grant an extension of time to allow the matter to be settled.
You will need to apply for your time to be extended.
Mediation to resolve your weathertight claim has information on extending the timeframe.
MBIE is happy to help answer any questions. Contact us for more information.
You can also discuss your claim with your Ministry of Justice case manager.