Following a recent survey, the RICS is to launch a mediation guidance note for its members
Most surveyors, at some point in their careers, will be involved in a dispute for their clients. This could either be giving initial advice as to whether there is a claim, or acting as an expert in a trial or other formal process. However, a growing part of a surveyor’s remit is how to advise when cases do not go to court and are dealt with by a form of alternative dispute resolution, the most common of which is mediation.
In a recent survey by the RICS, while most surveyors thought they had a “fair”, “good” or “very good” understanding of mediation as a method for resolving disputes, almost 90% said they would like to improve their knowledge and understanding of mediation. The most popular methods that they requested were online learning, lectures and RICS guidance.
Guidance note
Following this survey, the RICS put together a working party – made up of mediators from both the surveying and legal community – to produce a guidance note for its members. The RICS also worked closely with the Property Litigation Association.
Aims
The guidance note is not aimed at surveyors who wish to be mediators (the RICS provides other training for this). It is intended for surveyors advising clients in relation to a dispute and gives guidance on when mediation should be considered, how it works in practical terms, the benefits of mediating over litigating and the consequences if parties do not mediate. It is aimed at helping surveyors to represent their clients at or before mediations. It is common for surveyors to attend mediations as experts, as part of a team of advisers. The guidance note covers that process but also deals with scenarios where surveyors may be involved without lawyers, particularly in the early days of a dispute. Even at that stage they should be aware of mediation – and advising their clients about it.
What
The guidance note explains the principles behind mediation: for example, that it is a voluntary, without prejudice and confidential process where a neutral third party helps parties to resolve their issues, do a deal and move forward, without paying out large sums in legal fees for an uncertain outcome. The note explores the more practical and commercial resolutions that can be achieved at a mediation that a court cannot order.
When
Effectively mediation needs to be considered in every dispute and the court rules require parties to consider it before they issue proceedings and throughout the process. The guidance note examines issues of timing and also looks at the penalties that a court can impose where a party refuses to mediate.
How
The guidance note sets out in detail how the process works, including choosing a mediator, finding a venue, entering into a mediation agreement, preparing documents to send to the mediator (including bundles and position statements), the process on the day and documenting any settlement. These are the parts of the process that are traditionally overseen by lawyers when they are involved. It is important that surveyors know how these work, especially if they are dealing with a case without a lawyer (which cuts down costs).
It also looks at factors that parties should consider before the day of the mediation, such as exploring what it is that they actually want to achieve and how they can do that, how they will deal with costs and, importantly, thinking about what the other party wants to achieve and its drivers. Surveyors need to be aware of these points in order to help their clients work out how they are going to negotiate and how they might best achieve what they want.
Why
The guidance note looks at the reasons parties should mediate rather than go to court, including: preserving business relationships, speed, cost, creative solutions, client involvement/control and, as mentioned, the fact that the court rules and case law say they should.
Property cases
Property disputes are ideally suited for mediation – for example, boundary or other neighbour disputes, where the cost of court proceedings can quickly outweigh any financial benefit of the claim.
Mediations also work in large commercial property or construction disputes. In all cases, surveyors are ideally placed to help their clients explore solutions that can be reached by agreement but that could not be obtained via a court resolution.
The parties can also chose a mediator who is an expert in the area of the dispute (which cannot be guaranteed of a judge) and is, therefore, fully able to understand the issues and offer help in suggesting practical solutions.
Success rates
The sixth Mediation Audit, carried out jointly by the Centre for Effective Dispute Resolution and the Civil Mediation Council, and published in May 2014 (see EG, 28 June, p122), stated that “mediators report that just over 75% of their cases are settled on the day, with another 11% settling shortly thereafter to give an aggregate settlement rate of around 86%”.
With those levels of success, mediation is clearly an effective tool in a surveyor’s armoury to get the best outcome for his client from a dispute.
Timing
The guidance note will be formally launched at the RICS Dispute Resolution Conference in London on 28 January 2015. There will then follow a series of road shows around the country, at which some of its authors and experienced mediators will explain the guidance note in more detail and will be available to answer any questions.
Jacqui Joyce is chair of the guidance note working party and a mediator at The Property Mediators: www.thepropertymediators.co.uk
