Guidance

Developer Remediation Contract Guidance: Dispute Resolution

Published 31 March 2025

Applies to England

This guidance applies from the date on which this guidance was issued to the date on which MHCLG revises, replaces or repeals it (if deemed necessary) at its sole discretion and in line with the Developer Remediation Contract.

What is the purpose of this guidance and who is it for?

1. What is the purpose of this guidance and who is it for?

This guidance is to support Participant Developers and third parties when using mediation to help resolve any disputes that may arise under the Developer Remediation Contract, before signing a works contract. Parties involved in other dispute resolution contexts are welcome to draw on the principles of this guidance to the extent that they do not undermine the dispute-resolution clause in a relevant works contract.

Government has signed the Developer Remediation Contract with developers, under which developers are obligated to identify and remediate (or pay to remediate) life-critical fire safety defects in certain buildings. The Contract and a list of developers who signed it are at www.gov.uk/government/publications/developer-remediation-contract.

Clause 16 of the Developer Remediation Contract provides for the possibility that a ‘Third Party Dispute’ may arise between the developer and one or more other parties (typically the freeholder and/ or leaseholders) in relation to the way in which the developer is performing against their obligations under the Contract. Clause 16 is set out at Annex A. In brief, the clause:

• (1) obligates the developer to act cooperatively to resolve Third Party Disputes (including offering meetings with the other parties and/ or suggesting to the other parties to take part in ‘alternative dispute-resolution mechanisms’

• (2) states that in circumstances where the developer and the third party have not already agreed a dispute resolution mechanism via the works contract (for example because there is no agreed works contract), MHCLG may facilitate adoption of a ‘Dispute Resolution Process’ between the parties, and

where MHCLG decides to facilitate the adoption of a Dispute Resolution Process, the developer is obligated to participate and cooperate with that process, without prejudice to rights and obligations implied by contractual agreements it has reached with the other parties.

About mediation

2. What is mediation?

Mediation is a flexible and confidential process used to settle a dispute between two or more parties.

It involves appointing a mediator, who is an independent and impartial third person, to help the parties talk through the issues, negotiate, and come to a mutually agreeable solution.

Parties may mediate before taking legal action or while legal action is underway.

3. What are the benefits of mediation?

Mediation allows you to stay in control. Unlike in court, where a judge makes the decisions, in mediation you can decide how you want to resolve the dispute and do not have to accept an outcome you are not happy with.

Mediation is usually quicker and less expensive than going to court, so it can be a more efficient way of resolving disagreements that allows everyone to move on from the problem sooner.

Mediation can help preserve your relationships. Settling a dispute through an adversarial court battle can put added pressure on the relationship between parties. Mediation helps you focus on communicating effectively with each other to find solutions that work for all.

4. What happens during mediation?

The mediator provides a safe and supportive environment to assist with negotiation so both sides can hopefully reach a settlement they agree on.

The mediator will listen to all views, talking to you privately, and sometimes together with the other party, to help guide you through the process.

Mediators are experts in communication and understand the strong emotions that can be generated when parties are in dispute.

5. When is the best time to mediate?

Mediation can take place at any time and the best time will often depend on your individual case. In general, it is best to try mediation as soon as you can. This will help reduce the amount of time and money spent on the dispute and open a dialogue before parties become too fixed in their position.

You may wish to pursue mediation as an alternative or in combination with a claim to court. If you have already started a court claim and wish to mediate, the court can pause your case to enable you to do so. The judge will not be told what is discussed or offered at mediation and it will not prejudice your court case.

6. What kinds of disputes are suitable for mediation under the Developer Remediation Contract?

Mediation under this agreement is suitable for resolving disputes between developers who signed the Developer Remediation Contract and third parties (such as Responsible Entities, including resident management companies and freeholders) about issues which are preventing those parties from signing a works contract for remedial works. This typically includes disputes about conditions for giving the developer access to the building (so that the developer can assess and/ or remediate it) and/ or the cost of assessing and/ or remediating the building.

The developer remediation contract obligates developers who have signed it to include in the works contract a dispute-resolution provision. If the parties have signed a works contract and committed to a certain approach to dispute-resolution within that contract, the parties are likely to be obligated to follow the agreed approach set out in the works contract. There is however, nothing to stop parties from using the dispute-resolution set out in this guidance for other Participant Developer/ third party disputes under the Developer Remediation Contract, as long as doing so does not undermine a works contract signed by relevant parties.

If a dispute concerns the scope of works in relation to a Fire Safety Assessment (FSA) and / or Up-to-Date Fire Risk Assessment of External Walls (FRAEW) obtained by a Participant Developer, MHCLG will often commission an independent audit of the FSA and/or FRAEW obtained by the developer before any mediation takes place in order to check whether the assessment(s) meet the requirements of the Developer Remediation Contract. The independent audit often helps to verify whether the developer’s FSA and/ or FRAEW are adequate to form the basis for the works contract. If you are considering mediation, we therefore advise parties to contact MHCLG before committing to mediation to find out whether an independent audit of any assessment(s) obtained by the developer have been carried out or is underway. You can contact MHCLG at building.safety@communities.gov.uk

Cost of mediation

7. How much does mediation cost?

It will depend on the complexity of the dispute. We advise parties to ask a mediation provider what the cost will be before committing to the mediation.

8. Who should pay for mediation in disputes involving the Developer Remediation Contract?

MHCLG considers that it is reasonable for developers to pay 100% of mediation fees to resolve third party disputes relating to the Developer Remediation Contract, in order to avoid leaseholders and residents incurring fees that would discourage or prevent the parties from resolving the dispute and agreeing a works contract to remediate life-critical fire safety defects in the building. In exceptional cases, this may be subject to negotiation, particularly in a case involving more than two parties.

While the developer should pay 100% of the mediation fee, MHCLG suggests that each party should agree to bear its own costs and expenses of preparing for and attending the mediation, including travel and any legal fees (if parties choose to involve lawyers).

The extent to which a party is legally represented during mediation is a matter for that party. For avoidance of doubt, no cost whatsoever for legal or professional costs relating to mediation under the Developer Remediation Contract is payable under a qualifying lease. This means that a landlord cannot require qualifying leaseholders to pay towards a mediator’s fee and/ or towards the cost of any legal representation at the mediation (per Building Safety Act Schedule 8 Para 9). A landlord also cannot top up any under-recovery of such costs in the service charge from a leaseholder who does not qualify for a reduction (per Building Safety Act Schedule 8 Para 10).

The mediator

9. What is the role of the mediator?

The role of the mediator is to act as an impartial third party and facilitate a meeting between disputing parties to agree how the dispute should be resolved. This may include: 

• facilitating agreement about the format, procedure, duration, date(s), start time, and providing venue arrangements for mediation as necessary

• facilitating the exchange of case summaries and document bundles between the parties

• setting up any pre-mediation meetings agreed by the parties and the mediator if requested

• compiling names and roles of attendees for the circulation of a participants’ form before mediation takes place

• facilitating a conversation between parties which may include assisting with communication and managing emotions, helping parties to make their points calmly and clearly, and to listen to other parties without interrupting or getting angry. The mediator will also support parties if they are finding the process stressful.

10. What are the obligations of the mediator in the context of the Developer Remediation Contract?

The mediator must:

• undertake basic research/reading to understand the Developer Remediation Contract and duties within it, including reading the MHCLG guidance on the contract for mediators. Parties should share the Contract with the chosen mediator

• have experience of mediating a construction dispute and be comfortable with the context of the Developer Remediation Contract

• agree (along with all parties involved in the dispute) to use MHCLG’s Dispute Resolution Procedure Agreement (Annex B to this document)

• agree to these terms and confirm that they have read the Guidance for Mediators document at Annex C

• have no conflicts of interest

• agree to remain impartial and neutral

11. Can the mediator decide on the outcome?

No. The mediator should not seek to adjudicate, arbitrate, advise, or impose a decision or solution in respect of any of the issues, save by agreement with the parties. Mediators are trained to help parties to see a way through the dispute, but they do not impose solutions. It is for you and the other parties to agree how you are going to settle the dispute.

Starting the mediation process

12. How should I initiate dispute resolution?

Parties should reach out to each other to propose dispute-resolution in relation to specific issues. We advise parties to inform MHCLG of their intention to pursue dispute-resolution by emailing us at building.safety@communities.gov.uk. We advise parties to do this because in some cases it may be that MHCLG has or intend to carry out an independent audit of fire safety assessment(s) obtained by the developer, which may make it unnecessary for the parties to pursue dispute-resolution.

If the parties agree to initiate mediation, then the next step will be for the parties to agree who the mediator should be..

13. What happens if one party refuses to engage in mediation?

MHCLG expects parties to work together in good faith to resolve disputes so that life-critical fire safety defects can be mitigated as quickly as possible.

If you believe that one or more parties are refusing to enter mediation without a reasonable explanation, please inform MHCLG at building.safety@communities.gov.uk.

Failure by a party to engage in mediation may be interpreted by MHCLG in a way which has significant contractual consequences for parties and/or future remedial works. Clauses 7 and 16 of the Developer Remediation Contract are relevant here. The Contract is available at www.gov.uk/government/publications/developer-remediation-contract.

Selecting a mediator

14. Where can I find a mediator?

Parties are free to source and choose their own mediator but should make sure they select a suitably experienced and qualified mediator who agrees to the mediator obligations at paragraph 10 of this guidance.

Parties should use best endeavours to ensure timely decisions are made, including choosing a mediator and agreeing a date for the mediation meeting to be held. MHCLG expects a mediator to be found and agreed within 20 business days of both parties agreeing to undertake mediation, and an agreement to have been reached within 60 business days.

15. Are mediators accredited and regulated?

Most mediators are regulated by their professional bodies but there is no formal regulation of mediators as a defined group.

16. Is there a mediation code of practice?

Yes.  The UK Mediation Code of Practice should be complied with, and any conflict of interest or other relevant matter should be reported to the mediator. The Code can be found at www.ukmediation.net/code-of-practice .

17. What if parties can’t agree on a mediator?

If parties do not agree on a mediator within 20 business days, parties should find a mediator from the below list and confirm to MHCLG in writing when this has been done at building.safety@communities.gov.uk:

• the Centre for Effective Dispute Resolution

• the Construction Industry Council

• the Technology and Construction Bar Association

• the Technology and Construction Solicitors’ Association

• the Royal Institute of British Architects

• the Royal Institution of Chartered Surveyors

• the Civil Mediation Council

When making a request to a nominating body, parties should be prepared to provide brief details of the project in discussion, the nature of the dispute, and the appropriate discipline and experience that is sought, so that a mediator can be found who meets the obligations at paragraph 10 of this guidance.

MHCLG reserves the right to choose a mediator for parties in circumstances where the parties have been unable to agree on a mediator themselves.

18.  What happens once parties have agreed a mediator?

The mediator will lead parties through the mediation process. The mediator will contact a representative of each party before the mediation to assist parties and the mediator to prepare for mediation.

The mediation process

19. What do I need to do to prepare for mediation?

Your mediator will discuss with you what you need to do in preparation for mediation. This will usually include (but is not limited to) the following:

• agreeing with the mediator the format, procedure duration, date(s), venue and start time for the mediation. In the context of disputes relating to the Developer Remediation Contract and covered by this guidance, this will include signing MHCLG’s Dispute Resolution Procedure Agreement (at Annex B in this guidance)

• arranging for payment for mediation services. As this guidance makes clear, it is expected that the developer will pay 100% of the mediator’s fee

• preparing and exchanging a case summary about the dispute to be considered at the mediation and agreeing with parties any other documents needed for the mediation  

• attending any pre-mediation meetings on terms and agenda agreed by the parties or proposed by the mediator

• reading each case summary and document bundle submitted in advance of the mediation

• notifying the mediator of names and roles of all those attending the mediation on behalf of your party, so that the mediator can inform all parties before the mediation meeting

• ensuring that a lead negotiator with full authority to settle the dispute attends the mediation in person or is accessible to agree a resolution. It is important that the key people attending for each of the parties remain present or, at worst, available by telephone or video conference for so long as the mediation continues. Any time constraints should be reported to the mediator as soon as known because any unexpected departure could be detrimental to the progress of the mediation and be perceived as disrespectful by other parties.

20. Is there a Dispute Resolution Procedure Agreement?

MHCLG has drafted the Dispute Resolution Procedure Agreement at Annex B of this guidance. This is informed by the Developer Remediation Contract and will ensure that disputes arising under Clause 16.3 or 16.4 of the Developer Remediation Contract are subject to similar minimum requirements. This aims to facilitate a consistent approach, in line with the requirements for fairness, independence, neutrality, proportionality and effectiveness which characterise the Developer Remediation Contract.

MHCLG will monitor progress towards resolving third party disputes between developers and third parties and will expect them to act in good faith so that remedial works can proceed as quickly as reasonably possible.

21. Who needs to sign the Dispute Resolution Procedure Agreement?

The Dispute Resolution Procedure Agreement at Annex B of this guidance needs to be signed by all parties involved in the mediation. Your mediator will guide parties through this process.

22. Who should attend mediation?

Each party to the dispute should have at least one representative to attend the mediation on their behalf. Parties may wish to consider having resident representatives present for the mediation. Parties may also wish to inform and involve (as appropriate) other interested stakeholders about the intention to proceed to mediation/ the mediation itself. The mediation agreement should be amended as necessary, to include any further parties as the parties and mediator consider appropriate.

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. Parties should focus on ensuring fairness and equality for all within the mediation. 

It is for the parties to resolve their dispute and reach an agreement. MHCLG is unlikely to be involved in mediation meetings but reserves the right to attend if we deem it necessary.

23. How long should mediation take?

After initiating dispute-resolution, MHCLG expects parties to complete the process within 60 working days. During this time, parties are expected to agree a mediator, complete the required preparation, conduct the mediation session (typically over the course of one day), and come to an agreement for resolving the dispute.

24. What happens if parties need more time to reach an agreement?

Mediation has a high success rate and most civil disputes are settled on the day or shortly after.

In complex cases, parties may find that they have made good progress but are not quite ready to agree a resolution. It can be helpful to take a break to think things through and then resume mediation. This would need to be agreed with both parties. The same mediator should be used to continue the mediation wherever possible.  

In these instances, the parties should write to MHCLG at building.safety@communities.gov.uk with an update on the reason for this and a reasonable timetable for resolution.

Parties should discuss and agree any additional cost to continue negotiations.

25. What happens if we do not reach agreement?

If parties do not reach a settlement following mediation, the mediator is asked to draft and share the following with the parties and MHCLG:

• A non-binding statement of the main facts and circumstances.
• Confirmation that the parties participated in the mediation.
• Details of any next steps or material matters in progressing the remediation as appropriate to the parties and MHCLG.

This can be completed via the form at the end of the Guidance for Mediators document at Annex C.

If one or more parties appear to be failing to engage with mediation in a proper and/ or timely manner, and/ or to be failing to act in good faith to secure a solution then MHCLG  reserves the right to take appropriate steps, including in relation to developer obligations under the Developer Remediation Contract and/ or the impact of rights under the Developer Remediation Contract, particularly in relation to Clauses 7 and 16. The Developer Remediation Contract(PDF,2MB) can be found on GOV.UK.)

26. What happens if parties reach an agreement?

If a resolution is found, parties will sign a written agreement setting out the agreement reached. 

Parties can choose whether to opt for a Non-Binding Agreement (which is not legally enforceable) or a Settlement Agreement (which is legally enforceable in court).

Any agreement reached through mediation must not contradict what is in the Developer Remediation Contract and/or Self-Remediation Terms, which can be found at Developer Remediation Contract.(PDF,2MB) Nor can any such agreement dilute statutory safety standards.

Any agreement (binding or non-binding) must be shared with MHCLG at building.safety@communities.gov.uk so that MHCLG can monitor the progress of developer-led remediation.

27. How will I know an agreement will not dilute minimum safety standards as enshrined in statute and/or the Developer Remediation Contract?

In the context of the Developer Remediation Contract, the developer is responsible for making sure that any mediated agreement does not dilute minimum safety standards enshrined in statute and/or the Developer Remediation Contract.

The developer must send a copy of any mediation agreement reached to building.safety@communities.gov.uk  so that the Ministry can be satisfied that the developer has met its obligations. MHCLG will flag any issues regarding agreements by exception.

28. Is the agreement legally enforceable?

If the agreement is in the form of a Non-Binding Agreement then it is not legally enforceable.

If the agreement is set out in a formal Settlement Agreement then it is legally enforceable in court, but only once it has been approved by MHCLG on the basis that it does not materially conflict with the contract. If you wish MHCLG to provide such approval please contact us at  building.safety@communities.gov.uk.

Parties can decide which form agreement to use.

Confidentiality

29. Is the mediation recorded?

No verbatim recording or transcript should be made of the mediation by the parties or the mediator in any form, but participants can make their own private notes which will not be disclosable to anyone else, including in any subsequent litigation or arbitration.

30. Is mediation confidential?

Mediation is usually confidential between the parties involved. But because of the Ministry’s responsibilities to hold developers to account under the terms of Developer Remediation Contract and report to the public on progress of developer-led remediation, MHCLG requests parties to make sure that:

• any mediation agreement the parties come to (binding or non-binding), are shared with MHCLG

• where mediation has not resulted in agreement, that the mediator provides a short report for the Ministry as stated in paragraph 5 of this guidance

Parties should send relevant materials and queries to MHCLG by emailing us at  building.safety@communities.gov.uk

Agreements will be subject to the confidentiality clause in the Mediation Agreement and will not be shared with parties outside of those involved in the mediation and/or where safety/ legal process requires that the agreement should be shared. In mediation, all conversations are ‘without prejudice’ which means that anything said at mediation cannot be used in court should the dispute go that far.

By exception, mediation outcomes (even non-binding) can be shared by any party if the law demands it and/or where information needs to be shared with a regulator for reasons of ensuring safety.

If a written mediation Settlement Agreement is the preferred route for parties, that agreement is subsequently disclosable in court for the purposes of enforcing the agreement.

Complaints

31. What can I do if I have a complaint about my mediator?

In the first instance, we advise you to contact the mediator to explain why you are unhappy and give them the opportunity to put things right.

If the mediator belongs to a professional body, you may wish to contact the body as it should be able to investigate your complaint. You may also want to check your consumer rights to make sure that you have received a fair service.

Annex A: Extracts from the Developer Remediation Contract

Below is the text of clause 16 referenced in this guidance, lifted directly from the Developer Remediation Contract:

• 16.1 In the event of a dispute or claim between a Participant Developer and any Third Party in relation to any element of that Participant Developer’s Works or any other action or omission of that Participant Developer in the performance of its obligations in accordance with these Self-Remediation Terms and/or the Contract (a “Third Party Dispute”), the Participant Developer will use all reasonable endeavours to resolve the Third Party Dispute fairly and as expeditiously as possible.

• 16.2 In the case of a Third Party Dispute between a Participant Developer and a Responsible Entity prior to entry into any given Works Contract in accordance with Clause 6.3, the Participant Developer will, in addition to its obligations under Clauses 16.1 and 16.3, act co-operatively and proactively to facilitate the resolution of the Third Party Dispute (including by suggesting that the Third Party Dispute is referred to senior representatives of the Participant Developer and the Responsible Entity such that they attempt to resolve the Third Party Dispute through good faith negotiation within 10 Business Days (or such longer time period as may be appropriate given the nature of the Third Party Dispute) and/or by suggesting such other alternative dispute resolution mechanism as may be appropriate given the nature of the Third Party Dispute).

• 16.3 DLUHC may, where the existence of a contractual mechanism between the Participant Developer and relevant Third Party to resolve such Third Party Dispute does not already exist, facilitate the adoption of a dispute resolution process (the “Dispute Resolution Process”) to assist with the resolution of any Third Party Dispute, including by the issuing of guidance, statements, directions, recommendations or similar (each a “Dispute Recommendation”), or otherwise. Any such Dispute Resolution Process, if adopted, will be implemented following good faith consultation with the Participant Developer, and be modelled upon best practice and principles of fairness, independence, neutrality, proportionality, accountability, competence and effectiveness.

• 16.4 The Participant Developer agrees that it will participate in and/or cooperate with any such Dispute Resolution Process as required. The use of the Dispute Resolution Process to assist with a Third Party Dispute will be without prejudice to the rights and obligations of the relevant parties under any Works Contract or any other agreements which gives rise to or contains provisions relevant to the resolution of such dispute.