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Sunday, May 5, 2013

Comments on the EQC Mediation service - Part 1

This first post covers the basic information relating to EQC’s Mediation Service. The Service has a website here.

To access the process you must first be approved by EQC as being a suitable candidate. There is an EQC brochure A Guide to the EQC Mediation Service (here) which sets out the basics. The information topics in the brochure are:

  • Who can use the EQC Mediation Service?
  • How does the EQC Mediation Service work?
  • Do I have to pay for it?
  • Who is bound by the mediation settlement?
  • What happens if there is no settlement?
  • What are the criteria for being offered mediation?
  • What if I haven’t been offered the service but would like to use it anyway?

This brochure is an important starting point, especially as mediation is not available for some of the major issues that exist between claimants and EQC.  Areas of dispute that are covered by the Service must contain one or more of the following elements:

  • A dispute which concerns matters of opinion (e.g. value of contents) that can be discussed and mediated
  • A disagreement with the assessed value of repairs, with an expert opinion to back it up
  • A dispute over building damage which was assessed by EQC as pre-existing, and for which the customer has evidence which they believe disproves this.

For those eligible for mediation there are three initial documents used with the EQC Mediation Service. They are:

1    Agreement to Mediate
2    Confidentiality Undertaking by Non-Party Attendees
3    Mediation Protocol

The documents have been prepared by the AMINZ (Arbitrators' and Mediators' Institute of New Zealand – website here) who are an organisation independent of EQC. Having said that AMINZ are paid by EQC and, as will be seen, the documents have been drawn up with EQC's interests in mind. The purpose of each of the documents is:

Agreement to Mediate (copy available here)

This is relatively straight forward document, but very important to get right. The highlights are:

Section 3 of the form requires the setting out of the issue or issues you have with your claim(s). How you word this will set the boundaries on what can be mediated. It will also prevent you from raising the issue later, once you have settled (see also below). If you are unclear on what to put, or how what is listed will affect your future options, get legal advice.

Section 4 is where the mediator is nominated, and this is your responsibility. See the Mediation Protocol for more on this.

Section 5 is where you agree to accept the Mediation Protocol.

Confidentiality Undertaking by Non-Party Attendees (copy available here)

If additional parties are involved (e.g. technical experts or specialists) they will need to sign this. The confidentiality agreement affecting you, the claimant, is in the Mediation Protocol and Settlement Agreement.

Mediation Protocol (copy available here)

This document sets out the mediation process and covers confidentiality, settlement, costs, fees and payments, exclusion of liability, and termination of the mediation process. Highlights and potential pitfalls of the protocol are:

Section 3: Appointment of Mediator. You, the customer, get to select the mediator but have to do so within five working days of agreeing to proceed with mediation. If you don't appoint a mediator AMINZ will do so. There is information about mediators on the EQC Mediation website here. If you are contemplating mediation then it may pay to investigate which mediators you want to nominate before signing up.

Section 5: Representation and Attendance. You, or your representative, must attend in person. If you appoint a representative (probably a lawyer) you must give them full authority to settle on your behalf. That person must also be sufficiently knowledgeable to be able to answer questions about the dispute.

Section 7: Conduct of Mediation. It is possible for the mediation process to be done via conference calls and video links. If you are not used to this technology you are likely to be at a major disadvantage, and other issues may arise such as knowing who is speaking or hearing clearly what is being said.

All parties must agree before conference calls and/or video links can be used so feel free to say no. It would be a lack of commitment on the part of the mediator, or the other parties, if they weren't happy for you to require face to face meetings. They may consider themselves busy people, but getting a process you are comfortable with is essential to your future wellbeing.

The mediator is impartial so you are on your own. Parties are expected to co-operate in good faith but that doesn't guarantee what ordinary people would consider a "fair go". There will be more on this in Part 2.

Section 8: Settlement. This part covers what happens when a settlement is agreed, or if there is no agreement. Section 8.3 contains an important recommendation regarding legal advice  - get some before you start the process.

Section 9: Confidentiality. Confidentiality clauses are widely used in mediation, and are nearly always designed to protect the major player in the process. This document is no exception. What this section means, for example, is if you get a decent settlement for a problem others share you cannot tell them what happened (other than you got a settlement you are happy with). It is a divide-and-conquer approach so that every claimant will need to go through the same process without knowing information that would be vital to their success. Should the result be one you are unhappy with the confidentiality agreement prevents you from raising the issues.

As it happens Section 9.7 provides a confidentiality exception for EQC and AMINZ. They are allowed to publish summaries of mediations providing all identifying material is removed. It is likely that EQC will use this to demonstrate situations where they feel exonerated, while remaining silent when they have had to make concessions. There is more on this in the discussions of the Settlement Agreement document in Part 2.

Part 2

In Part 2 the very important 4th document will be looked at, along with the significant risks that exist within the process.

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