All too often surveyors become involved in disputes between: owners; developers; neighbours and contractors, which do not come under established dispute resolution procedures, such as the Party Wall etc. Act 1996. Surveyors often become engaged in resolving disputes between neighbours using a variety of techniques and processes. Examples of disputes brought to surveyors include disputes over: boundaries; access, building contracts; maintenance of hedges, walls and fences, etc. Frequently surveyors find that they are best placed to advise on such matters and somethimes try to steer neighbours away from litigation, which should be applauded. Unfortunately, however, all too often surveyors are engaged by the legal profession to prepare reports supporting their particular client’s stand point and the dispute becomes acrimonious with both sides appointing legal advisors and surveyors. Whilst many disputes have the potential to become legal, they often fester for many years, never getting to court, they are seldom resolved and often cost their clients significant amounts of money to simply stand still.
The process of Mediation is often overlooked but is now becoming common place, particularly as courts actively encourage its use in the Civil Procedure Rules. Many surveyors have, in the past, found themselves attempting Mediation to resolve disputes on an informal and ad-hoc basis.
The Faculty would like to encourage its members to consider and recommend Mediation, where appropriate, to parties in dispute where a statutory dispute resolution process does not apply and legal action many not benefit either party.
Frequently asked questions:
1. What is mediation?
Mediation is a ‘negotiated agreement’ to resolve a dispute entered into on a purely voluntary basis by the parties in dispute. It is a relatively straight forward process usually facilitated by an: experienced, trained or qualified Mediator. It is not necessary for the Mediator to have expertise on the matter that is in dispute. Mediation does not work in all cases and often relies on a degree of compromise from one or both parties to help resolve the dispute. However the benefits of resolving the dispute in this way can often far outweigh the cost of compromise.
2. Why does mediation work?
Mediation tends to be a very successful form of dispute resolution primarily because it is the parties themselves who desire the resolution. Once they have decided to mediate they have taken a significant step towards resolving that dispute. Basic benefits of Mediation include:
Mediation can be very quick. Sometimes half or day mediation can bring a matter to a conclusion, which makes it inexpensive.
Compared to other forms of dispute resolution, and in particular litigation, it is extremely inexpensive.
Mediation is private and confidential so neither party risks any public embarrassment. Parties can often stay on good terms following Mediation.
Mediation can be made binding by agreement.
The parties stay in control of the outcomes without a legal process dictating the matter.
Costs are often known and fixed at the outcome.
3. When is Mediation not appropriate?
When the matter is clear cut and a legal remedy is available and necessary.
When there has been a crime committed.
When one party wants to stop an activity immediately and delays could make the situation worse.
When a party wants to prove a point or wants the largest financial settlement possible.
When other contractual agreements for resolving disputes may apply.
4. What does the process involve:
The process is usually started by both parties actually agreeing to mediate and they then sign an ‘Agreement to Mediate’. The parties are then asked to prepare and submit a ‘Position statement’, which sets out their sides of the argument. The actual mediation can then take place at a venue and time to be agreed.
Once the agreement is reached a ‘Mediation Agreement’ is prepared which documents the terms of the Agreement, which when signed becomes binding.
Faculty Mediators List
The Faculty is encouraging its members to recommend Mediation where appropriate or where its members think it can benefit the parties in dispute.
Members who have formal training or a qualification in Mediation can apply to the Faculty to be included on the Mediator list on the Faculty website for referrals to the general public, subject to them meeting certain eligibility criteria, such as:
Holding an accredited academic or professional Mediation qualification or must be an accredited member of a Registered Mediation Organisation.
Having the correct level of Professional Indemnity Insurance in relation to Mediation.
Satisfying the Faculty Membership requirements.
Those members interested should contact the Faculty Administration office to register their interest.
Alternatively, if you have not yet trained in Mediation but have an interest in doing so, the Faculty has teamed up with UK Mediation Limited, who can provide accredited mediation train