Other contracts

Other contracts

In a previous article, we discussed the salient terms in the widely used NZS 3910 contract. However, that contract is more suited for high-value, medium to large construction projects due to terms that include the involvement of an engineer to the project and detailed processes which may not be practical or economic in respect of smaller residential projects. Given that much construction activity in New Zealand is small-scale residential construction, it is important for contractors who engage in this space to have a contract that suits their needs.

There are two main contracts that are geared towards residential contractors.

The first is from the Registered Master Builders Association and the second is from New Zealand Certified Builders (NZCB). Both are large trade associations for residential construction companies that provide, among other things, a suite of contracts for their members to use.

In this article, we will look at the salient terms in NZCB’s cost and markup building contract which was recently updated in February 2018.

Like the NZS contracts, NZCB’s cost and markup building contract contains tick box type options making it easy for members to use. It also contains various express acknowledgements by the client, clarifying whether the contractor is bound to any estimate provided. In our view, this is a useful clause that assists in avoiding a common dispute between client and contractor.

Contractor’s obligations

The contractor is required to perform the building work to the standard required in the contract documents and the relevant building consent.

The NZCB contract applies and repeats the usual warranties that are contained in the Building Act 2004 and the Consumer Guarantees Act 1993. In particular, the contractor warrants that the building work will be carried out:

  1. In a proper and competent manner.
  2. In accordance with the plans and specifications under the contract.
  3. In accordance with the building consent.
  4. With reasonable care and skill.
  5. Be completed by the date specified in the contract or, if no date is specified, within a reasonable time.

Variations

As compared to NZS 3910, NZCB’s contract does not require the contractor to follow a strict process for variations. The contract provides a simple process whereby the contractor is allowed to carry out variations instructed or requested by the client (or the client’s agent). The terms do not require variations to be recorded in writing but recommends that variations should be recorded in writing where practicable. This clause appears to reflect a common practice in the context of residential construction where instructions are given verbally.

To a contractor, the benefit is that it does not take away a contractor’s entitlement to be paid in circumstances where a verbal instruction was given but not recorded in writing. However, this does not mean that the client is unable to dispute that a verbal instruction was given.

Cost and markup

Cost and markup building contracts do not specify a fixed price for the contracted work; the actual costs incurred by the contractor for the contracted work are passed on, plus a pre-agreed margin to account for the contractor’s profit and overheads.

This type of contract is beneficial to the contractor as it will not be required to absorb rising material and labour costs which is especially relevant in the current building market.

Parties that engage a contractor for building work may prefer a fixed-price contract to give them certainty. Certain financial institutes will also require a fixed-price contract when it comes to lending funds for the project.

Conclusion

Contact us if you are a party to a construction contract of any type, and a dispute has arisen. Our lawyers at Norling Law can review your circumstances and discuss strategies on how to progress your project as part of our no obligation legal consultation. To book a free 30-minute consultation please click this link https://norlinglaw.co.nz/consultation-brent/

Implied warranties

Implied warranties

In addition to the express terms of a construction contract, there are various warranties that are implied under statutes. This applies to all residential building work.

There are two main sources of implied warranties. The first is the Building Act 2004 and the second is the Consumer Guarantees Act 2003.

The Building Act 2004

The implied warranties are set out in s 362I of the Building Act. They require that:

  1. All building work be carried out in a proper and competent manner and in accordance with plans and specifications set out in the contract; and in accordance with the relevant building consent.
  2. All materials used will be suitable for the purpose for which they will be used; and unless otherwise stated in the contract, will be new.
  3. The building work will be carried out in accordance with, and will comply with, all laws and legal requirements, including, without limitation, the Building Act and its regulations.
  4. The building work will be carried out with reasonable care and skill, and completed within the time specified or a reasonable time if no time is stated.
  5. The dwelling will be suitable for occupation at the end of the work.
  6. If the contract states the particular purpose for which the building work is required, or the result that the owner wishes the building work to achieve, so as to show that the owner relies on the skill and judgment of the other party to the contract, that the building work and any materials used in carrying out the building work will be reasonably fit for that purpose; or be of such a nature and quality that they might reasonably be expected to achieve that result.

The above warranties apply for 10 years regardless of the form of the contract. In addition to the above warranties, s 362Q provides a 12-month defect repair period in that if any defects are identified within 12 months from the completion date, the contractor has an obligation to fix them. We recommend keeping copies of your contract and all other building documentation for your own reference and for future purchasers of the property. Also, all copies of all correspondence with the contractors involved in construction.

Where there is a breach of an implied warranty and if the breach can be remedied:

  1. The party may require the contractor to remedy the breach (including repairing or replacing defective materials supplied by the contractor or the contractor’s subcontractor).
  2. If the contractor, after being required to remedy the breach, refuses or neglects to do so, or does not succeed in doing so within a reasonable time, the party may have the breach remedied by someone else and recover from the contractor all reasonable costs incurred in having the breach remedied, or cancel the contract.
  3. The party may obtain from the building contractor damages for any loss or damage to the client resulting from the breach (other than loss or damage through reduction in the value of the product of the building work) that was reasonably foreseeable as liable to result from the breach.

In most cases, a breach can be resolved through negotiation. However, if the breach cannot be remedied, the party may obtain from the contractor damages in compensation for any reduction in value of the product of the building work below the price paid or is payable by the client for that work, or cancel the contract.

These warranties extend to subcontractors. This means that communication is key. Contractors should make all subcontractors aware of the required standards, especially in relation to any amendments or variations so that they may then be communicated back to the principal.

The Consumer Guarantees Act 1993

The guarantees provided under the Consumer Guarantees Act are set out in ss 28 to 30. Where building services are supplied to a consumer, they are guaranteed such that:

  1. Services will be carried out with reasonable care and skill.
  2. The service and any product resulting from the service will be fit for particular purpose.
  3. Where a timeframe is not contractually agreed, services provided to a consumer will be completed within a reasonable time.
  4. Where a price is not contractually agreed, the consumer is not liable to pay more than a reasonable price for the services.

Where services fail to comply with guarantees, and the failure can be remedied, the consumer may:

  1. Require the supplier to remedy it within a reasonable time;
  2. Where a supplier who has been required to remedy a failure refuses or neglects to do so, or does not succeed in doing so within a reasonable time:
    I. Have the failure remedied elsewhere and recover from the supplier all reasonable costs incurred in having the failure remedied; or
    II. Subject to s 35, cancel the contract for the supply of the service in accordance with s 37.

Conclusion

It is important that contractors and consumers alike are aware of the implied warranties provided by the legislation on top of the warranties explicitly provided in construction contracts.

Contact us if you are concerned about the implied warranties identified in this article following or during your construction project. Our lawyers at Norling Law can review your circumstances and discuss strategies on how to progress your project as part of our no obligation legal consultation.

To book a free 30-minute consultation, please click this link https://norlinglaw.co.nz/consultation-brent/

Saved by Equity – the result of New Zealand Tiny Homes and Tiny Town

Saved by Equity – the result of New Zealand Tiny Homes and Tiny Town

New Zealand Tiny Homes (Tiny Homes) fell victim to liquidation on 15 November 2022. After its incorporation in 2020 this was a short, but most certainly not sweet, business affair for its director James Cameron of New Plymouth.

The liquidation of Tiny Homes was said to be linked to the liquidation of Tiny Town Projects Limited (Tiny Town) which was also liquidated on 15 November 2022, another of Mr Cameron’s companies incorporated in 2017.

Tiny Town and Tiny Homes were related companies. Tiny Homes held the intellectual property for the creation of building small properties in New Zealand, whereas Tiny Town was the company that actually attended to the building of these properties

The business of Tiny Homes and Tiny Town

Tiny Homes and Tiny Town were in the business of building small properties for consumers in New Zealand. The size of these properties allowed for a far more accessible fixed purchase price for home buyers.

At the time of liquidation of Tiny Homes and Tiny Town, there were a number of these homes that were virtually completed. The only hurdle being procedural matters of gaining compliance before title in the property could pass from Tiny Town to the purchaser.

It is important to note that each of these homes was customised and built on the purchaser’s instructions. A sale and purchase agreement was signed for each home and payment of the purchase price was paid to Tiny Town in instalments.

The first liquidator’s report of Tiny Town that the issues stemming from COVID-19, a spike in building costs and supply chain issues impacted the company’s ability to ‘fulfil fixed price contracts.’ This inability to fufil fixed price contracts led to both Tiny Town and Tiny Homes demise.

The liquidation

In November 2022, Tiny Town was placed into liquidation. At the point of liquidation there were 6 homes that were partially completed. Of the 6 purchasers of these homes, 3 had paid the full purchase price of their respective homes and were awaiting small changes to be made to be issued a code of compliance before the homes could be delivered. The remaining 3 purchasers had homes that were 40%-50% complete.

The first liquidators report for Tiny Town showed the company had very few assets, bar the 6 homes in question.

The liquidators filed proceedings in the High Court seeking directions on how to best deal with the 6 homes.

The proceedings

The case of Manginness v Tiny Town Projects Limited (In Liquidation) [2023] NZHC 494 (the Proceeding) was heard before Venning J on 20 February 2023 with the judgment being delivered on 14 March 2023.

One of the issues to be decided in the Proceeding was whether the 3 fully paid purchasers were entitled to take ownership of the homes, or whether they belonged to Tiny Town. There were also issues raised in relation to the Personal Property Securities Act 1993 (PPSA) as to whether an equitable lien was granted over all 6 homes.

When does property pass?

The first issue was whether property in the homes had passed to the 3 fully paid purchasers. Counsel for the purchasers argued that as the purchase price had been paid in full, the homes should pass to the purchasers. Counsel argued the compliance certificate should not be the decisive factor as in the liquidator’s evidence it was accepted delivery of the homes would occur when full payment was made, not when the compliance certificate was issued.

Venning J rejected this argument, stating that, property will only pass when the homes are ‘in a deliverable state.’ Venning J defined the deliverable state as when the compliance certificate was issued.

It was concluded on the first issue that property in the homes had not passed to the purchasers.

An equitable lien

Counsel for the purchasers argued that even though there was uncertainty on the property passing, that under section 53 of the PPSA the purchasers had an interest in the homes, whether by way of an equitable lien or a constructive trust.

An equitable lien is a form of equity which the Court can grant to give an indemnity or priority over other creditors. On the other hand, a constructive trust is a trust created whereby one person holds property for the benefit of another, it prevents someone holding property from unjustly benefitting from the holding of that property.

Venning J considered that section 53 of the PPSA did not apply here. However, His Honour’s view was different on the topic of an equitable lien. It was argued by counsel for the purchasers that an equitable lien should be granted to all purchasers over the homes based on the extent of money paid to Tiny Town by them.

A key argument is that these homes were identifiable to each purchaser, and had been built to their specifications. Counsel for the purchasers argued that “the purchasers’ equitable lien confirmed their in rem rights in the tiny homes that trumped any competing claim in the liquidation.”

Venning J submitted this was a difficult issue to ascertain based on the facts of this case. His Honour laid weight on the fact these homes were specified to each purchaser and could not reasonably have been sold by the liquidators to other parties. Venning J concluded there was an equitable lien over the 6 homes.

The next issue was whether the lien was subject to the PPSA, to which Venning J referred to it as being excluded under section 23(b) of the PPSA. His Honour’s full conclusion was “I conclude that the individual purchasers are entitled to equitable liens for the extent of the value of the purchase moneys paid by them and that their equitable liens sit outside and are not affected by the provisions of the PPSA.”

The result of the judgment was that the purchasers of the 6 homes were entitled to an equitable lien against the homes to the extent of the purchase moneys paid by them.

Summary

This judgment has been described as ‘ground-breaking’ and that certainly is the case. This judgment will change the way assets in liquidation are dealt with. The judgment gives rights to the purchasers in a situation where in the normal course of the liquidation it would be common for them to lose their assets.

This decision plays on the fairness of the justice system and emphasises the importance of natural justice in a situation where typically there really are no winners. Although it is arguable this ruling is to the disadvantage of other unsecured creditors in the liquidation, it is weighed on the balance of taking away homes from 6 individuals who in some cases may have been left homeless without this judgment.

The judgment will cast a positive light on the prospects of recovery in liquidations for some creditors, showing them the law of equity can assist in certain circumstances. However, it also results in some doubt for secured creditors whose position is ultimately worsened if equity prevails.

In this case it seems as If on the balance the correct decision was made, however this may not always be the case. If you require assistance on your position as a creditor in a liquidation or want some further information on your rights please do not hesitate to contact us for a free no obligation discussion.

Our lawyers at Norling Law can discuss the outcome of this case as part of our no obligation legal consultation. To book a free 30-minute consultation please click this link

 

Practical Completion

Practical Completion

Practical completion is a term that is commonly misunderstood by many. Generally, practical completion is achieved when all building work is completed except for minor outstanding works and defects which do not prevent the property from being used for its intended purpose. In other words, if the unfinished items prevent occupation, then practical completion is not achieved. 

There are various definitions of practical completion depending on the type of contract that is used. Depending on the project, the principal could ask for additional conditions to be fulfilled before practical completion can be achieved. For more complex projects, it is common for practical completion to be defined so as to include the involvement of the engineer or architect.

How practical completion is defined in a contract is important as it is frequently linked to other clauses such as the accrual of liquidated damages, final payment, payment of retentions, possession by the principal, and commencement of the defects liability period. 

Sample clauses 

For example, Standards New Zealand (NZS) contracts define practical completion as: 

Practical Completion is that stage in the execution of the work under the Contract when the Contract Works or any Separable Portion are complete except for minor omissions and minor defects: 

  • Which in the opinion of the Engineer, the Contractor has reasonable grounds for not promptly correcting; 
  • Which do not prevent the Contract Works or Separable Portion from being used for their intended purpose; and 
  • Rectification of which will not prejudice the convenient use of the Contract Works or any Separable Portion. 

The New Zealand Institute of Architects (NZIA) contracts define practical completion as: 

Practical Completion means that the Contract Works or a Separate Section of them attain Practical Completion when: 

  • They are able to be used for their intended purpose without material inconvenience; 
  • They have generally been built in accordance with the Contract documents; 
  • They are complete except for:
  • Minor defects and minor omissions for completion during the Defects Liability Period;
  • Omissions and defects which the Architect becomes aware of during the Defects Liability Period; 
  • Any undiscovered, latent or other defect or omission which the Architect could not have reasonably discovered; 
  • Work which the Architect and the Contractor have agreed to defer for completion during the Defects Liability Period, or such later date as agreed between the parties. 

In the context of smaller residential projects, the New Zealand Certified Builders’ contract defines practical completion as: 

“Practical Completion” means both the point in time, and the stage in the progression of the Building Work, when the Building Work is so far advanced that the Building can effectively be used by the Owner for its intended purpose, notwithstanding that certain non-critical or aesthetic features are yet to be completed or minor omissions or defects are yet to be rectified.  

Relationship with code compliance certificate 

Unless the contract states otherwise, practical completion is not contingent upon issuance of a code compliance certificate (CCC) from a local authority. CCC is a certificate issued by a local authority confirming that it is satisfied on reasonable grounds that all building work has been completed in accordance with the building consent issued for the project. The principal is not likely to receive CCC unless practical completion has been reached. However, achieving practical completion does not necessarily mean that CCC will be issued. 

Frequently, there is confusion over payments at the practical completion stage as it is common for the principal to wish to withhold some or all of the final payment until all minor outstanding works and defects are completed, or until issuance of CCC. If the principal withholds payment despite the contract stating that that the contractor is entitled to payment upon practical completion, withholding payment may be a breach of contract. 

Given that payment is the fundamental obligation of the principal, non-payment would entitle the contractor to terminate the contract and seek damages from the principal.

Conclusion

Practical completion is an important stage of the building process. For principals, they must understand that while the building can be used for its intended purpose, the entire project will not be completed at that time and there will likely be incomplete works for the contractor to perform. 

Typically, most contracts would state when the contractor is entitled to be paid its final invoice. If so, principals are unable to withhold payment on the basis that there are minor works to be completed. However, the defects liability period should provide some comfort to the principal in that the principal is able to require the contractor to rectify any defects that become apparent within a certain period after practical completion. This is in addition to the warranties and guarantees provided by the contractor to the principal.

Contact us if you have experienced delays in your construction project. Our lawyers at Norling Law can review your circumstances and discuss strategies on how to progress your project as part of our no obligation legal consultation. To book a free 30-minute consultation please click this link.

Gatekeepers of mediation — why mediation should be encouraged

Gatekeepers of mediation — why mediation should be encouraged

This article discusses who the main gatekeepers of mediation are and why mediation should be encouraged.

Gatekeepers of mediation
Gatekeepers provide advice and advocate for the participants of a mediation. The main gatekeepers to commercial mediation are commercial lawyers/litigators. Based on a New Zealand Commercial Mediation Study, a vast majority of gatekeepers described their knowledge of mediation as extensive.

Research[1] suggests that strong awareness of mediation does not mean that all gatekeepers endorse mediation to their clients. Some commercial lawyers may even discourage mediation using their gatekeeper status. This is likely because they are more familiar with litigation.

Lawyers as gatekeepers are important in the mediation process because they bring important skills to the mediation. Such skills include:

  1. an understanding of legal issues and concepts;
  2. preparing clients for dispute resolution; and
  3. drafting skills.

Therefore, lawyers as gatekeepers can effectively facilitate settlements through mediation and should actively encourage mediation as an alternative to litigation. An adversarial approach, however, undermines mediation and shows a lack of understanding of the benefits of mediation as a dispute resolution process.

It is important to remember that all lawyers have an ethical obligation under Rule 13.4 of the Conduct and Client Care Rules to advise clients about alternatives to litigation where appropriate. They must always act in the best interests of clients regardless of whether it potentially reduces their earnings. For this reason, ignoring mediation may well indicate a breach of the ethical code or a belief that mediation is considered an ineffective form of dispute resolution in the situation.

Why gatekeepers encourage mediation
It is helpful to understand why gatekeepers recommend mediation to their clients. A paper presented to the 2016 Arbitrators’ and Mediators’ Institute of New Zealand (AMINZ) annual conference noted that gatekeepers encourage mediation because they want to:

  • Achieve settlement — according to a research done in 2015[2] , commercial mediators reported settling at least 70% of the cases they mediated.
  • Save time — a 2012 United States Department of Justice record showed that over 100 years of litigation time was saved by using voluntary alternative dispute resolution.
  • Save money — a 2012 UK construction dispute mediation survey found that 76% saved more than £25,000 and the top 9% of cases saved over £300,000. It reported “the cost savings attributed to successful mediations were significant…. Only 15% of responses reported savings of less than £25,000; and the top 9% of cases saved over £300,000…”
  • Engage an experienced mediator with skills and subject knowledge who they have trust and confidence in — according to a Harvard Law School article[5], building rapport is more important to effective mediation than employing specific mediation techniques and tactics. It reported:

“According to a survey by Northwestern University law professor Stephen Goldberg, veteran mediators believe that establishing rapport is more important to effective mediation than employing specific mediation techniques and tactics.

To gain parties’ trust and confidence, rapport must be genuine: “You can’t fake it,” one respondent said. Before people are willing to settle, they must feel that their interests are truly understood.”

  • Protect the parties from power imbalance — gatekeepers want mediators that can keep the process as fair as possible.

Other benefits of mediation include:

  • Flexibility
  • A structured and ethical process designed to preserve relationships.
  • Certainty and control of the outcome for the parties.
  • Confidentiality.

Mediation is very beneficial to parties that are motivated to settle and should regularly be encouraged where appropriate. Gatekeepers, particularly lawyers, should increasingly promote mediation to commercial users for further growth of mediation in New Zealand. Mandatory mediation for commercial disputes before the courts could also be introduced.

How can you find out more?
At Norling Law, we are passionate about solving commercial disputes and legal issues. We offer professional, independent, and impartial mediation services to users in a dispute.

Norling Law supports mediation as an efficient way of solving legal issues. Especially if the parties to the dispute want a negotiated outcome that remains private and confidential and puts a prompt end to the costs of having the dispute ongoing.

As mediators and gatekeepers, we assist the users to a mediation achieve their priorities throughout the mediation process and enable them to make informed decisions regarding the resolution of the disputes they are involved in.

Our mediator, Wendy Alexander, regularly assists with the facilitation of settlements through mediation.

At Norling Law, we receive a large number of commercial disputes. Commercial disputes can be extremely stressful and can often be suitable for mediation. The parties may have been negotiating directly to reach a solution that would meet the interests of both parties. However, the parties often find it difficult to reach agreement.

Using mediation is an option that could potentially resolve commercial problems quickly and efficiently. Mediation is a low-cost option to consider before deciding on whether to litigate. Traditional mediation is usually a more expensive process as it involves the users meeting physically and there are resulting costs involved with travel and booking a neutral meeting room (or rooms). Sometimes traditional mediation might not be available at all for urgent matters.

Wendy can effectively assist users of mediation with her extensive experience as a commercial mediator. Wendy is a mediator with all the skills gatekeepers want. Wendy completed training at Program on Negotiation at Harvard Law School, USA and the AMINZ. Wendy is also an Associate Member of AMINZ. This training complements the skills she already has in negotiation and dispute resolution.

Wendy often receives feedback from the mediation parties that they felt relaxed and in safe hands with the management of the dispute and that Wendy truly understood where they were coming from.

If Wendy’s expertise can be of assistance, the first step is to send us the details of your dispute here.

[1] Dr Grant Morris & Ms Daniella Schroder, LEADR/Victoria University Commercial Mediation in New Zealand Project Report, (June 2015), p5.

[2] Above at 1.

[3] Vander Veen, n14, citing: Statistical summary: Use and benefits of alternative dispute resolution by the Department of Justice, (2012). Retrieved from: http://www.justice.goc/olp/adr/doj-statistics.htm.

[4]     Vander Veen, n14, citing: Gould, N., King, C. & Britton, P. (January 2010), Mediating construction disputes: An evaluation of existing practice, London: The Centre of Construction Law & Dispute Resolution, King’s College London. Retrieved from: http://www.ciarb.org/information-and resources/2010/02/17/KCL%20Mediating%20Construction%20Complete.pdf

[5]     https://www.pon.harvard.edu/daily/mediation/what-makes-a-good-mediator/.

The different models of mediation

The different models of mediation

This article discusses the process variations and styles of mediation from Dr Grant Morris and Annabel Shaw’s commentary (A to Z of New Zealand Law — Alternative Dispute Resolution — Mediation (online ed, Thomson Reuters)).

Process variations
There are several variations to the classic model of mediation. The classic model is discussed in our previous issue ‘The process of mediation’. These include co-mediation, telephone mediation, multiparty mediation, shuttle mediation and online mediation.

  • Co-mediation
    Two mediators conduct the mediation in a co-mediation. This may be suitable for a complex mediation with several parties involved. It may also be used if the parties need a specialist mediator. One of the disadvantages of co-mediation is the cost involved. This is not a common commercial mediation model in New Zealand.
  • Telephone mediation
    Telephone mediation may be useful for parties who are uncomfortable communicating in person. One of the disadvantages relates to the quality of engagement between the parties. Online mediation, however, is similar to the classic model. Please see our previous issue How can online mediation be used? for more information on online mediation.
  • Multiparty mediation
    Multiparty mediation could be preferred if there are more than four parties involved. This is because multiparty disputes usually involve several issues and are complex.  A more detailed pre-mediation phase is required to identify the relevant parties involved, to reach an agreement about the issues in dispute, and to clarify the authority to settle. Multiple sessions with different parties are common in a multiparty mediation. Multiparty mediations may not be confidential, and it is not a common commercial mediation model in New Zealand.
  • Shuttle mediation
    Shuttle mediation is where the mediator meets with the parties separately. This method is suitable for disputes that require standard negotiation and settlement-focused mediations. Please see our previous issue ‘Overcoming barriers and challenges of mediation’ further information.

Mediation styles
There are a couple of main mediation styles, and each have different objectives. The mediator in a process-oriented mediation facilitates the process and the parties have the responsibility to resolve the dispute. These include facilitative, settlement, transformative and narrative mediation. In a substance-oriented mediation, an expert mediator in the subject matter will recommend how the dispute can be resolved.

  • Facilitative mediation
    Facilitative mediation is the classic style of mediation which is discussed in our previous issue ‘The process of mediation’. This style focuses on the parties’ interests rather than their legal rights or positions. The emphasis is on the process, and the mediator will support the parties to resolve the dispute themselves. This style may be preferred if it is important for the parties to preserve relationships.
  • Settlement mediation
    Settlement mediation is commonly used for commercial and transactional disputes. It focuses on positions rather than interests, and the mediator will actively assist the parties to reach a settlement. This style often involves shuttle negotiation and parties are usually legally represented. While this style has a good settlement rate, it does not necessarily result in a quality settlement.
  • Evaluative mediation
    Evaluative mediation focuses on the parties’ rights and the mediator provides expert advice. The mediator will actively give recommendations, legal opinions and advise on the possible outcomes in court. Parties are often legally represented.  There are concerns that this style may undermine parties’ autonomy and is more prone to power imbalances.
  • Transformative and narrative mediation
    In transformative and narrative mediations, the mediator encourages the parties to transform relationships. The mediator will not actively intervene because the focus is on changing relationships rather than on settlement. While this is a good option if parties want to improve relationships, it can be harmful if it is not done well. Depending on the situation, mediators may apply aspects of transformative and narrative mediation.

Conclusion
The best style will depend on numerous factors such as the situation, relevant parties involved, the issue that is in dispute and the type of mediator. Facilitative mediation will be best if the dispute involves multiple complex issues.  Settlement mediation can be used to help parties reach an outcome. Evaluative mediation can help parties resolve negotiation impasses, reach a settlement, and receive comments from an expert mediator in the subject matter. Transformative and narrative mediations are great options if parties wish to improve relationships.

It is important that parties are informed about the mediation process regardless of which style of mediation is used.

How can you find out more?

At Norling Law, we are passionate about solving commercial disputes and legal issues.

We offer professional, independent, and impartial mediation services to users in a dispute. Norling Law supports mediation as an efficient way of solving legal issues. Especially if the parties to the dispute want a negotiated outcome that remains private and confidential and puts a prompt end to the costs of having the dispute ongoing.

As mediators and representatives, we assist the users to a mediation achieve their priorities throughout the mediation process and enable them to make informed decisions regarding the resolution of the disputes they are involved in.

Our mediator, Wendy Alexander, regularly assists with the facilitation of settlements through mediation.

At Norling Law, we receive a large number of commercial disputes. Commercial disputes can be extremely stressful and can often be suitable for mediation. The parties may have been negotiating directly to reach a solution that would meet the interests of both parties. However, the parties often find it difficult to reach agreement.

Using mediation is an option that could potentially resolve commercial problems quickly and efficiently. Mediation is a low-cost option to consider before deciding on whether to litigate. Traditional mediation is usually a more expensive process as it involves the users meeting physically and there are resulting costs involved with travel and booking a neutral meeting room (or rooms). Sometimes traditional mediation might not be available at all for urgent matters.

Wendy can effectively assist users of mediation with her extensive experience as a commercial mediator. Wendy completed training at Program on Negotiation at Harvard Law School, USA and the AMINZ. Wendy is also an Associate Member of AMINZ. This training complements the skills she already has in negotiation and dispute resolution.

Wendy often receives feedback from the mediation parties that they felt relaxed and in safe hands with the management of the dispute and that Wendy truly understood where they were coming from.

If Wendy’s expertise can be of assistance, the first step is to send us the details of your dispute here.