Guidance

Annex C: Guidance for mediators

Published 31 March 2025

Applies to England

Guidance and form for mediators mediating a dispute under clause 16.3 of the contract’s Self-Remediation Terms (SRTs).

Please ensure that you have the relevant expertise and have read the relevant documents to be able to appropriately support the parties through the mediation.

In the instance that an agreement is not reached by the parties, you are requested to submit a brief form of report (below) to the Ministry at the conclusion of the mediation.

Key clauses for mediators

(NB mediators are expected to be familiar with the contract and to have identified and read it in advance, focussing on the Statement of Issues provided by the parties in advance to identify which clauses are of relevance to the dispute they are resolving).

Please note that the content below is intended as a short summary of key aspects of the contract, intended to help mediators engage with key clauses in the SRTs, and should not substitute for proper engagement with the SRTs. It is likely that some disputes will relate to clauses which are not set out below.

1. Clause 4 – Commencement and duration (of the contract)

All sub clauses within clause 4 are relevant.

2. Clause 5 – Obligation to identify and assess Buildings Requiring Works

• 5.3, 5.4 and 5.14 – The Participant Developer (PD)’s duties in relation to the FSA and FRAEW assessments as regards the standard of work to be done.  Please note that under the contract it is the PD’s Fire Safety Assessment (FSA) and Fire Risk Assessment of the External Walls (FRAEW) (so long as up-to-date and compliant) which sets the standard of work to be done.  Under 5.14 the PD will bear the costs of obtaining compliant FRAEWs.

3. Clause 6 – Obligation to carry out the works

• 6.1 – Obligation falls on the PD to carry out/ procure through suitably qualified consultants the works, taking into account the reasonable interests and concerns of all leaseholders, residents, occupiers and other users of the Building requiring works.  Costs covered and not covered are dealt with here.

• 6.3 – Where the PD is doing the work they should enter into a Works Contract with the responsible entity (RE) which should include its own provisions for Alternative Dispute Resolution within that contract.  That post-works contract Alternative Dispute Resolution is out-with the scope of this process, which has been entered into pursuant to 16.3 of the SRTs.

Please note that where there is a works contract but it does not contain an DR clause, the mediator should firstly explore with the parties why there isn’t an DR clause in the works contract with a view to agreeing an DR clause to be included in the works contract.  Thereafter during the course of that mediation, if there is time left that day, and the parties wish to continue to mediate other issues in dispute, they can proceed to mediate other aspects of the dispute under the amended DR clause as agreed and inserted into the works contract, should they wish to do so.

4. Clause 7 – Exceptions from the obligation to carry out and complete the works

• 7.1 – There is no obligation on the PD to complete works relating to defects which are the result of alterations by a person other than a PD group company after the original completion date.

• 7.4 – There is no obligation on the PD to carry out the works whilst they are not granted access (so long as they used their best endeavours to obtain consent to the access).

• 7.5 – There is no obligation on the PD to go beyond the works required to remedy the defects, other than unavoidable betterment work.

• 7.8 – All work must be carried out in accordance with Building Regulations and applicable law relevant to the works.

5. Clause 8 – Obligation to engage with certain third parties

• 8.2 – The PD will from the commencement of the works until practical completion of the Works, keep the RE updated as often as reasonably necessary in respect of the progress of the Works. This includes updates at least once in every 3-month period throughout the duration of the works.

• 8.3 – The PD will request the RE shares with LHs residents, occupiers and other users all relevant information in writing that the PD provides to the RE within 10 business days of receipt.

• 8.4 – If the RE does not share with LHs, residents, occupiers and other users all information, the PD will share such information within 10 business days following a written request…

6. Clause 11 – Obligations following practical completion of the Works

• 11.1 – (Compliant) Qualifying assessment to be provided to the Dept and the RE within 20 business days of the date of receipt of the QA.

• 11.6 – Terms on which the developer is released from its contract with the Dept and the SRTs.

7. Clause 16 – Dispute resolution between the Participant Developer and Third Parties

• 16.3 – DLUHC’s power – where the existence of a contractual mechanism between the PD and Third Party to resolve a dispute does not already exist – can facilitate the adoption of a dispute resolution procedure to assist with the resolution any of any Third Party dispute, including by the issuing of guidance, statements, directions, recommendation or similar, or otherwise.

8. Clause 20 – Claims between PD Group Companies and Third Parties

• 20.5 – The PD is not liable for indirect/ consequential losses incurred by any Third Party (NB see Annex 1 for a definition of the Third Party).

9. Clause 21 – Liability to certain Third Parties

• 21.1 – This clause sets out the PD’s liability to each Third party with a freehold/leasehold interest in the building for the reasonable costs to the extent that such costs are properly incurred by the TP as a result of any default by the PD in the performance of its obligations under the contract (save for indirect costs).

10. Clause 24 – Breach and Termination

• 24.1 – The Dept’s right to terminate the contract in the case of breach.

11. Clause 32 – Confidentiality

• 32.1 – The PD and Dept’s commitment to treat as confidential all confidential information (see the definition of confidential in Annex 1), subject to the constraints set out in 32.3.

Post-Mediation Form for mediator to complete (to be included and sent to the Ministry at building.safety@communities.gov.uk in the instance agreement is not reached between parties)

• Name of parties
• Nature of dispute
• Did both parties attend and participate? Y/N
• Was agreement reached? Y/N
• If agreement was not reached, do the parties intend to continue mediating?  Y/N
• In your opinion would further mediation be beneficial?
• Were any particular issues or next steps agreed?
• Do you have any other observations?