Guidance

Annex B: Dispute Resolution Procedure Agreement

Published 31 March 2025

Applies to England

Draft dispute resolution procedure agreement – for use in relation to disputes arising as provided for by Clause 16.3 of the self-remediation terms of the Developer Remediation Contract.

Purpose

This Dispute Resolution Procedure Agreement is for all parties involved in mediation. It sets out the procedure to be followed and adhered to in mediation related to clauses 16.2 and 16.3 of the Self Remediation Terms of the Developer Remediation Contract. By signing this Agreement each Party and all those attending the Mediation on its behalf agrees to be bound by its terms.

The Mediation is between:

• [name and address of first Party]
• [names and addresses of subsequent parties] (hereafter the “Parties” and each “Party”)
• [name of mediator] (the “Mediator”)
• The Ministry of Housing, Communities and Local Government] reserves the right to attend if appropriate] (hereafter the ‘Ministry’)

The dispute concerns

• [provide brief details of dispute]

The Mediation will take place:

• [provide time, date and place]

The persons attending on behalf of each Party will be as follows:

• [First Party: provide names]

• [Subsequent parties: provide names]

Terms of the Dispute Resolution Procedure Agreement

1. The Parties agree to attempt in good faith to settle their dispute at the Mediation. The Mediator agrees to conduct the Mediation, and the Parties agree to participate in the Mediation in accordance with this Agreement and consistent with the values of fairness, independence, neutrality, proportionality and effectiveness.

2. Parties agree they have chosen a mediator acceptable to both parties that meets the requirements set out below and by signing this document, the Mediator also confirms that he/she:

a. has no conflicts of interest

b. agree to remain impartial and neutral

c. have experience in mediating contractual and construction disputes and will provide evidence if required

d. agrees to undertake basic research/reading to understand the Developer Remediation Contract and duties within it, if not known already (Parties should share the Contract with the chosen mediator)

e. has read the guidance provided by MHCLG

f. as far as reasonably possible, encourages the parties to reach any agreement at mediation which does not undermine the Developer Remediation Contract

g. will provide a short form-style report for the Ministry called The Post Mediation Form which includes:

i. a brief statement of the main facts and circumstances

ii. confirmation of whether both parties attended and participated

iii. whether agreement was reached

iv. if agreement was not reached, whether more Mediation would be appropriate, and whether any particular next steps or issues were agreed

The Post Mediation Form is annexed to the guidance for Mediators. This will help the Ministry to monitor the effectiveness of negotiations and determine whether there has been any conduct which would suggest a lack of good faith.

3. Once a mediator has been agreed and appointed, the Parties agree to adhere to the Mediator’s terms of business. This includes fees and terms of payment. The developer is responsible for the cost of the mediator’s fees. (This may be subject to negotiation, particularly in a case involving more than two parties). Under no circumstances should costs of mediator’s fees be borne by leaseholders. Each Party agrees to bear its own costs and expenses of preparing for and attending the Mediation. For the avoidance of doubt any fees relating to the preparation for or attendance at a Mediation by any Party shall not constitute ‘cost of the Works’ pursuant to clause 6.1 of the Self Remediation Terms.

4. The Mediator will determine procedure ahead of and at the Mediation, in consultation with the Parties. The Mediator facilitates to encourage the Parties to come to an agreement.

5. The extent to which the Parties are legally represented, and the extent of involvement of legal representatives, will be a matter for the Parties to consider individually and each Party agrees to bear its own costs and expenses of appointing such legal representation. Parties should focus on ensuring fairness and equality for all within the Mediation.

6. Parties agree that the Mediator is acting as an independent contractor and cannot give legal advice to any Party. They are not the agent of any of the Parties, nor are they acting for them in any capacity.  They cannot be called as a witness in any proceedings related to the dispute which is the subject of the Mediation, and he/she agrees that he/she will not at any time act for any of the Parties individually in connection with any dispute.

7. The inclusion of the Ministry as a Party is at the discretion of the Ministry. Other Parties will not compel nor seek to exclude the Ministry as a Party.

8. The inclusion of a leaseholder as a representative of all leaseholders for the building(s) in question is encouraged to be considered by both parties. If a leaseholder representative does attend Mediation, the mediator, in consultation with the Parties, should make any appropriate amendments to the Dispute Resolution Agreement to account for this.

9. Each Party will have present at the Mediation someone with full authority to settle the dispute without the need to consult anyone not present.  If this presents any difficulty for a Party, the Party will inform the Mediator at the earliest opportunity.  If a Party needs to consult with persons who will not be at the Mediation, they will ensure that they are able to communicate with those persons throughout the duration of the Mediation.

10. Any agreement reached through Mediation will not seek to contradict what is in the Developer Remediation Contract and/or Self-Remediation Terms, accessible in the public domain Developer remediation contract. At all times, the Participant Developer remains bound by the Contract and any agreement reached will not replace or reduce the obligations contained in the Contract/ Self-Remediation Terms.  To the extent that any agreement replaces or reduces the obligations on the parties contained in the Contract/ Self Remediation Terms, that/ those parts of the agreement which do so are invalid and unenforceable.

11. The Mediation is confidential between the Parties and the Ministry (if/where the Ministry is not a formal Party to the agreement).  Each Party and those attending the Mediation will keep confidential all information, correspondence and documents arising out of or in connection with the Mediation provided that it shall not be a breach any of the following:

a. to make any disclosure required by law or essential to ensuring appropriate safety regulation (including third Party recovery claims)

b. to disclose any information for the purpose of notifying brokers and insurers and in relation to any associated processes

c. to make any necessary disclosure to accountants or auditors or legal advisors

d. to make such disclosure as is necessary for the purpose of enforcing any Settlement Agreed as part of the Mediation

12. Where a Party privately discloses to the Mediator any information in confidence before, during or after the Mediation, the Mediator will not disclose that information to any other Party or person without the consent of the Party disclosing it.

13. Except for information which would have been admissible or disclosable in proceedings if the Mediation had not taken place, and subject to the qualifications set out in paragraph 12 above, all information and communications (whether oral, in writing or otherwise) made in, or in connection with, the Mediation will be without prejudice, privileged and not admissible as evidence or disclosable in any current or subsequent litigation or other proceedings.

14. No formal record or transcript of the Mediation will be made. No evidence (other than that contained in the Mediator’s form of agreement provided at the conclusion of the Mediation) concerning the conduct of the Mediation will be adduced in evidence in any continuing or subsequent litigation, arbitration or other proceedings between the Parties in connection with the Dispute.

15. An agreement can be binding or non-binding. A Non-Binding Agreement is not legally enforceable.  If the agreement is set out in a formal Settlement Agreement, then it is legally enforceable in court. The Mediation will terminate upon settlement being concluded (with an agreement in place), the Mediator retiring from the Mediation, or one of the Parties withdrawing (except that, where there are more than two parties, they may agree that the Mediation will continue as between them until terminated).

16. If the Mediation has not been concluded within 60 business days from the point dispute resolution has been instigated by one Party, the parties should write to MHCLG with an update and reasonable timetable for resolution.

17. In order to assist the parties, in the event that a settlement is not reached, the mediator will complete the Post Mediation Form for the Ministry which sets out briefly the context of the Mediation (see paragraph 2g), whether agreement has been reached, or more Mediation would be beneficial, including whether any next steps were agreed (the Post Mediation Form is annexed to the guidance for Mediators), which must  be shared with the Ministry.

18. The referral of the dispute to Mediation does not affect any of the Parties’ rights under Article 6 of the European Convention on Human Rights. If the dispute is not settled by the Mediation, the Parties’ rights to a fair trial remain unaffected.

19. This Dispute Resolution Procedure Agreement is subject to English law.  In the event of any dispute relating to the interpretation, meaning, effect or enforcement of any agreement reached during the Mediation, the Parties will attempt to settle that dispute by Mediation, failing which the courts of England shall have exclusive jurisdiction to settle any claim, dispute or matter of difference which may arise out of, or in connection with, the Mediation.

Signed:

…………………………………………………………[name] on behalf of the [first Party]

………………………………………………[name] on behalf of the [subsequent parties]

……………………………………………………………………………………..[Mediator]

Dated …………………………………………………………………………………………