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27 2004

Residential Tenancies Act 2004

Chapter 4

Mediation and adjudication

Mediation.

95. —(1) The following provisions apply to a mediation which the Board has arrange under section 93 in relation to a dispute.

(2) The person appointed under section 93 (2) to conduct the mediation (“the mediator”) shall inquire fully into each relevant aspect of the dispute concerned, provide to, and receive from, each party such information as is appropriate and generally make such suggestions to each party and take such other actions as he or she considers appropriate with a view to achieving the objective mentioned in subsection (3).

(3) That objective is to have the issue or issues between the parties resolved by agreement between them without further recourse to the procedures under this Part being needed.

(4) As soon as practicable after the mediation is completed, the mediator shall prepare a report containing the following—

(a) a statement of what matters, if any, relating to the dispute are agreed by the parties to be fact,

(b) a summary of the matter or matters, if any, whether they go in whole or part to resolving the dispute or not, agreed to by the parties (and this summary shall be contained in a document signed by each of the parties acknowledging that the matter or those matters are agreed to by them), and

(c) relevant particulars in relation to the conduct of the mediation (including particulars in relation to the number and duration of sessions held by the mediator and the persons who attended any such session) and a list of any documents submitted to the mediator (but without disclosing any of their contents).

(5) The mediator shall, after preparing a report under subsection (4), furnish a copy of it to the Director.

(6) There shall then be furnished to the Board by the Director—

(a) if the report contains a document of the kind mentioned in subsection (4)(b), a copy of that document (but not any other part of the report), or

(b) if the report does not contain such a document, a statement that no matters have been agreed to by the parties which resolve in whole or part the dispute (but not any part of the report).

Procedures to be followed on foot of Board's receipt of information under section 95 (6).

96. —(1) After the receipt by it of the document or statement referred to in section 95 (6), the Board shall serve a copy of the document or statement on each of the parties, together with the following notice.

(2) That notice is a notice requiring the party to inform the Board—

(a) if the information served on the parties indicates that there is agreement between the parties such as to resolve in whole the dispute concerned, whether that agreement still exists,

(b) if the information served does not indicate that to be the case, whether there now exists such an agreement between the parties.

(3) If—

(a) the Board is informed by the parties that an agreement of the kind referred to in subsection (2) exists, or

(b) in the case of paragraph (a) of subsection (2), one or more of the parties fails to indicate whether the agreement referred to in that paragraph still exists,

the Board shall, subject to subsection (4) and (5), follow the procedures under section 121 (which concerns the making of determination orders) in relation to the agreement.

(4) Those procedures shall not be followed—

(a) any sooner than 21 days, nor

(b) any later than 28 days,

from the date of service of the notice mentioned in subsection (2) on each of the parties (or if the date of service of the notice on each of them is not the same whichever of the dates of service is the later or latest).

(5) The Board shall also not follow those procedures, if one or more of the parties, having stated, in the course of being communicated with under the preceding subsections, that agreement of the kind referred to in subsection (2) exists, subsequently, (but not later than 21 days from service of the notice mentioned in subsection (2) on him or her) states to the Board that such agreement no longer exists.

(6) The Board shall, at the request of either or both of the parties, refer the dispute to the Tribunal for its determination if either—

(a) as a result of the steps taken under subsection (1), the Board ascertains that an agreement of the kind referred to in subsection (2) does not exist, or

(b) a statement of the kind referred to in subsection (5) is made to it.

Adjudication.

97. —(1) The following provisions and sections 98 and 99 apply to an adjudication which the Board has arranged under section 93 (3) or 94(a) in relation to a dispute.

(2) The person appointed under section 93 (3) or 94(a) to conduct the adjudication (“the adjudicator”) shall inquire fully into each relevant aspect of the dispute concerned and provide to, and receive from, each party such information as is appropriate.

(3) For that purpose, the adjudicator may require either party to furnish to him or her, within a specified period, such documents or other information as he or she considers appropriate.

(4) The adjudicator shall determine the dispute by either—

(a) reaching a decision himself or herself in the matter, or

(b) subject to section 98 , declaring to the parties that he or she has adopted, as his or her determination of the dispute, a decision reached (through the adjudicator's assistance under subsection (5)) by the parties themselves in resolution of the matter,

and the reference in paragraph (a) to the adjudicator's reaching a decision in the matter shall be deemed to include a reference to his or her deciding not to deal with the dispute in accordance with section 85 .

(5) Where the adjudicator considers it would be of practical benefit, the adjudicator may provide assistance to the parties with a view to the parties themselves reaching a decision in resolution of the matter concerned; such assistance may include the adjudicator's stating to the parties any provisional conclusion he or she has reached in relation to any of the issues concerned.

(6) Any statement of such a conclusion shall—

(a) not be made in relation to any issue of fact which is in dispute between the parties, unless the parties request the making of such a statement,

(b) not be made before every document submitted to the adjudicator by the parties and any initial oral submissions made by them have been considered by the adjudicator, and

(c) be accompanied by a statement, whether oral or in writing, that the conclusion is of a provisional nature and its making does not absolve the adjudicator of his or her duty to determine the dispute impartially and in accordance with the requirements of procedural fairness.

(7) The adjudicator may, in his or her discretion, permit another person to appear on a party's behalf at any hearing before the adjudicator.

“Cooling-off” period for purposes of section 97 (4)(b).

98. —(1) A decision reached by the parties themselves in resolution of the matter concerned may not be the subject of a declaration under section 97 (4)(b) unless—

(a) a period of 21 days has elapsed from the date on which the parties first inform the adjudicator that such a decision has been reached by them, and

(b) in that period none of the parties has informed the adjudicator that he or she no longer accepts that decision.

(2) If, in the period mentioned in subsection (1), the adjudicator is informed by any of the parties that he or she no longer accepts the decision mentioned in that subsection, the adjudicator shall, subject to conducting any further hearings in the matter as he or she thinks appropriate, proceed to reach a decision himself or herself in the matter.

(3) The adjudicator shall indicate to the parties the effect of this section upon being first informed by them that a decision has been reached by them in resolution of the matter concerned.

(4) That indication of the adjudicator shall also include an indication that the decision reached is not capable of being appealed to the Tribunal and shall become binding on the parties on a determination order under section 121 being made in relation to it.

Adjudicator's report.

99. —(1) As soon as practicable after an adjudicator has made a determination under section 97 in relation to a dispute, the adjudicator shall prepare a report containing the following—

(a) a statement of what matters, if any, relating to the dispute are agreed by the parties to be fact,

(b) a summary of the matters (whether they go in whole or part to resolving the dispute or not) agreed to by the parties,

(c) the terms of the determination made by the adjudicator,

(d) in the case of a determination under section 97 (4)(a), a summary of the reasons for the determination, and

(e) relevant particulars in relation to the conduct of the adjudication (including particulars in relation to the number and duration of hearings held by the adjudicator, the persons who attended any such hearing and any documents submitted to the adjudicator).

(2) The adjudicator shall, after preparing a report under subsection (1), furnish a copy of it to the Board.

(3) After the receipt by it of a report under subsection (2), the Board shall serve on each of the parties a copy of the report and the following statement.

(4) That statement is one to the effect that the Board will follow the procedures under section 121 (which concerns the making of determination orders) in relation to the determination of the adjudicator unless, in the case of a determination under section 97 (4)(a), an appeal is made under, and in accordance with, section 100 against the determination and that appeal is not subsequently abandoned.

Appeal to Tribunal against adjudicator's determination.

100. —(1) One or more of the parties may appeal to the Tribunal against a determination of an adjudicator under section 97 (4)(a).

(2) Such an appeal shall be made within 21 days from the date the Board serves on the party the report and statement referred to in section 99 (3).

Provisions common to mediators and adjudicators.

101. —(1) In respect of a matter dealt with by him or her under this Chapter, the mediator or adjudicator shall—

(a) declare to the parties at the outset of dealing with the matter any potential conflict of interest of which he or she is aware or ought reasonably be aware,

(b) act at all times in accordance with the highest standards of the professional body, if any, of which he or she is a member,

(c) maintain the confidentiality of the proceedings concerned and shall not disclose any report prepared by him or her under section 95 (4) or 99, otherwise than in accordance with those sections.

(2) Where a declaration referred to in subsection (1)(a) is made to the parties then, unless the parties agree to the mediator or the adjudicator continuing to deal with the matter, the Board shall appoint another person from amongst the panel of mediators or adjudicators under section 164 (4) to deal with the matter.

(3) References in this Part to the person appointed under section 93 (2) or (3) or section 94 (a) to conduct the mediation or adjudication concerned shall be construed as including references to the person appointed for that purpose pursuant to subsection (2).

(4) Subject to any rules under section 109 , the manner in which a mediation or adjudication is conducted shall be at the discretion of the mediator or adjudicator concerned but it shall be the duty of that person to ensure that the mediation or adjudication is conducted without undue formality.