Guide to Completing the Notice of Mediation

GUIDE TO COMPLETING THE NOTICE OF MEDIATION

Before completing the Notice of Mediation on the following pages, please carefully read these guidance notes.

IMPORTANT NOTES:

This Notice of Mediation is to be used where the Parties to the dispute have previously agreed to refer any dispute to Mediation under the BDT Mediation Rules, typically by way of inclusion of the BDT Mediation Model Clause in their underlying agreement/contract.

Where Parties have not previously agreed to refer any dispute to Mediation under the BDT Mediation Rules, they will need to execute a Mediation Agreement in the form found at Appendix 2 to the BDTMediation Rules to proceed.

Parties who have executed a Mediation Agreement in the form found at Appendix 2 to the BDTMediation Rules do not need to complete and serve a Notice of Mediation, and can immediately proceed to make an application for the appointment of a Mediator using BDT’s online application form.

THE PARTIES and their representatives

In this section, set out the full names and contact details for each of the Parties and their Representatives, including a current email address for each where that is available as that will be the primary means of communication used by the Registry.

Be careful to ensure that you correctly name/identify anyParty. For example, if your contract is with a company you need to ensure that the company is fully and correctly named as the other Party - not the trading name it may use or the name of any individual you may have been dealing with.If the contract is with a ‘trust’, name each of the trustees in their capacity as trustees of the trust as the Party to the Mediation ie, A and B as trustees of the XYZ trust.

You must ensure that all relevant Parties (and their Representatives, where they are known) are named and included in the Notice of Mediation.

Multiple Parties

There may be multiple Parties to your dispute. Simply adjust this template to provide details for each Party.

MEDIATION AGREEMENT

In this section, you need to specify:

(a)the Mediation Agreement that is being invoked; and

(b)the legal instrument or the relationship out of, or in relation to which, the dispute arises.

To proceed to Mediation, the Parties must have agreed to mediate under the BDT Mediation Rules. As such, it is essential to have aduly executed MediationAgreement before you proceed.

In many cases the following BDT Model Mediation clause (or words to a similar effect)will be included incontracts where the Parties wish to have any future disputes resolved by Mediation under the BDTMediation Rules:

Any dispute or difference arising out of or in connection with this contract, or the subject matter of this contract, including any question about its existence, validity or termination, shall be referred to mediation in accordance with the Mediation Rules of the Building Disputes Tribunal.

In such cases all that is required is to attach a copy of the relevant provision in the contract and a copy of the execution page of the contract to the Notice of Mediation.

NOTE: Parties to an existing dispute that have not incorporated the BDT Model Mediation Clause into a prior agreement may agree to refer that dispute to Mediation under the BDTMediation Rules by signing theMediation Agreement at Appendix 2 to the Rules.After executing that agreement, the Parties can proceedto making an immediate application for the appointment of a mediator using BDT’s online application form. There is no need to complete this Notice of Mediation.

THE DISPUTE

In this section, you need to set out in summary form the nature of the dispute. It is essential that sufficient information is given so that everyother Party andBDT are suitably apprised of the nature of the disputeand the issues that will likely present in the Mediation.

Information concerning the nature and details of the dispute assist BDT where it is required to select and appoint a Mediator under the Rules.

THE OUTCOME SOUGHT

In this section, you need to specify what it is you are seeking in terms of an outcome or outcomes from the Mediation ie, payment of money, agreement to act or to refrain from acting in a particular way, etc.

This is simply so that the Parties are suitably apprised of what the First Party (Applicant) is seeking such that they can understand the scope and nature of the claim(s) made against them and properly prepare for the Mediation.

PROPOSAL FOR A MEDIATOR

In this section, you may specify the name and details of any person you propose to act as Mediator, or the experience/expertise that you consider would be necessary/helpful for the Mediator to have.

Please note it is not essential that you propose anyone to act as Mediator, or for the Parties to try and agree on anyone - in many cases, neither the Parties nor their Representatives will have sufficient experience and/or knowledge to make a fully informed decision. BDT’s Registrars are experienced in appointing the most appropriate Mediator to act in any particular case, and in the vast majority of cases, BDT will select and appoint the Mediator for the Mediation.

MAKING AN APPLICATION TO BDT

A Party may, after the expiry of ten Days from the date of service of the Notice of Mediation on every other Party, or earlier if the Parties have agreed on a nominee or the Parties have signed the Mediation Agreement in the form found at Appendix 2 to the BDT Mediation Rules,apply to BDT to appoint a Mediator by completing an Application for Mediation. The Application must include:

(a)the Mediation Agreement;

(b)the Notice of Mediation (if relevant);

(c)any document recording the Parties’ agreement as to the Mediator, or, where no agreement has been reached:

any proposal as to the Mediator, and if it exists, any response to that proposal; and
any document recording the Parties’ agreement as to the preferred expertise of the Mediator, or where no agreement has been reached, any proposal as to the preferred expertise of the Mediator and, if it exists, any response to that proposal.

The Application may be made simply and easily online.

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If you have any questions or concerns regarding your legal rights and obligations, we strongly recommend that you speak with a legal advisor.

If you are based in New Zealand, or you are an overseas based Party looking to engage a New Zealand lawyer to represent you in a Mediation, we suggest you try NZLS’ Find a Lawyer to locate someone who is able to provide the advice you require: .

NOTICE OF MEDIATION

[FIRST PARTY] hereby gives written notice of its intention to refer a dispute with [SECOND PARTY] to Mediation in accordance with the Mediation Rules of the Building Disputes Tribunal.

THE PARTIES

Provide the names and contact details of each Party to the intended Mediation and that Party’s Representative (if any).

First Party:
Attention:
Address:
Phone:
Email:
Representative:
Name of firm:
Address:
Phone:
Email:
Second Party:
Attention:
Address:
Phone:
Email:
Representative:
Name of firm:
Address:
Phone:
Email:

MEDIATION AGREEMENT

The dispute has arisen out of, or in relation to, [name the legal instrument or relationship out of, or in relation to which, the dispute arises].

The parties’ agreement to mediate this dispute under the BDT Mediation Rules is [identify the MediationAgreement].

(Copy of Mediation Agreement attached)

DISPUTE

[set out a brief description of the nature of the dispute]

OUTCOME SOUGHT

[First Party] seeks the following outcome(s):

PROPOSALS FOR MEDIATOR

[First Party] makes the following proposals regarding the identity and/or experience or expertise of the Mediator:

Dated at [PLACE] this Wednesday, 19 December 2018

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[NAME]