Dispute resolution overview of mediation
Mediation is voluntary and informal. An impartial person (the mediator) helps people with a dispute to find their own solution. Mediators are independent and professional. They focus on helping parties solve the problem, and the parties decide their own outcome.
The mediator will not make a decision for the parties 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.
Mediation has several advantages.
- It requires a constructive, co-operative approach.
- Parties can develop and agree upon workable and mutually acceptable solutions – often outcomes that could not be achieved at adjudication or court.
- Confidentiality applies to anything agreed to or disclosed in mediation.
- Mediation is likely to be less expensive, and is relatively quick compared with adjudication or the courts.
- The presence of the mediator can also ensure that power imbalances between parties are minimised.
The Department offers mediation services for lower-value claims (claims $20,000 and below) and standard claims (more than $20,000) when they are referred from the Weathertight Homes Tribunal.
Lower-value claims mediation
If the claimant decides to go to mediation, they will need to fill in a form. This officially refers the claim to mediation. A settlement advisor then contacts other parties and confirms their participation. The claimant may still go ahead with mediation with some parties if they don’t get all potential parties agreeing to participate.
There are statutory time limits that mean a mediation must take place within 20 working days for a stand-alone house, and 40 working days for a multi-unit complex from the date the claim is referred to mediation.
The settlement advisor will identify any further information or steps needed before the mediation. The mediation itself should only take half a day. It will be held in a location as close as practicable to the property involved.
If the claim is resolved, an agreed settlement is signed. If agreement is not reached the claimant may choose to go on to adjudication.
A settlement advisor will send parties a lower-value claims mediation information sheet if the claimant chooses to go to mediation.
Standard claims mediation
Mediation for standard claims can take place after a claimant has applied to the Weathertight Homes Tribunal for adjudication, and before the claim has reached the hearing stage. A Tribunal member, in discussion with all the parties, decides whether mediation is appropriate. If it is, the member will issue an order referring the claim to mediation.
A Ministry of Justice case manager then liaises with the Department to obtain an impartial mediator. The case manager will arrange for the mediation and will inform the parties of all the details.
The Tribunal can set a specific limit on the time in which the mediation must be held. The Weathertight Homes Resolution Service Act allows 20 working days for stand-alone claims or 40 days for multi-unit complex claims. The time allowed by the Tribunal can be extended only by application to the Tribunal with the mediator’s support.
It may be allowed only where it is evident that the claimant and parties made every effort 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, and parties can resolve their dispute.
See the information sheets mediation for standard claims and the pursuing a claim through the Weathertight Homes Tribunal for more information.