26 Apr 2017
The length, costs and uncertainty of litigation is leading to an increased use of mediation to settle disputes out of court. How does it work in practice?
No matter if we talk about simple disagreeements between landlord and tenant or complex technical issues related to infrastructure projects: mediation has proved to be the most effective way to sort it out and rebuild the trust between parties.
How to agree on mediation
When a conflict arises, the contractual relationship can be easily compromised and it may become difficult to discuss the opportunity to choose mediation as an alternative to litigation. This is why we recommend all RICS members and firms to include the mediation clause in their standard terms and conditions. By doing this, the contractual parties agree in advance that in case of any disputes they will make an attempt to solve it through mediation before going to court.
The RICS mediation clause is available in several languages and can be downloaded on this page.
Commercial real estate is a sector open to conflict. Going to court can result in a lengthy and costly process with an uncertain outcome. Including the RICS mediation clause in the terms and conditions of lease contracts allows a quick and cost-effective solution of a dispute while restoring the business relationship.
What is the next step?
Each party is entitled to contact RICS Dispute Resolution Service at firstname.lastname@example.org to appoint a mediator to resolve amicably any disagreements related to the enforcement of the contract. The mediator will be chosen within the international Panel of RICS Mediators based on his skills, area of practice and availability. He or she will be an independet expert in the subject matter of the dispute who will be able to guide the parties towards the settlement.
My professional experience as a Chartered Surveyor helped me to understand all the technical details of the dispute and gain the confidence of the parties.
How does mediation work?
When thinking of mediation some people imagine two parties sitting at opposite sides of a table shouting at each other and a mediator sitting in the middle trying to calm them down by suggesting potential solutions to their disputes. It couldn't be more wrong. The role of a mediator is to listen carefully at both the two parties in order to understand what each of them would like to achieve. To do this, he may decide to meet the parties individually and to have a joint meeting only as a following step. Confidentiality is key to the process and parties need to be reassured that whatever they express to the mediator will not be revealed to the other party. RICS Accredited Mediators are prepared to identify tactics and strategies being employed by the parties and diffuse them when they are counterproductive to reaching the settlement.
It is all about rebuilding trust between parties by focusing on their common interests.
What's the outcome?
Mediation is a voluntary process allowing parties to find an agreed solution to the dispute. A skilled mediator explores interests and open people's mind to innovative solutions to guide them towards a settlement of mutual satisfaction. The advantage to use an RICS Accredited Mediator in a dispute related to real estate, property and construction, is that he speaks the same language of the parties and knows exactely what the underlying interests are.
The outcome of mediation is not a judgement like in a court case, but it is a new contract protecting the interests of both parties.
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