Leaky building mediation / judicial settlement conference
Whilst a trial is the ultimate conclusion of litigation, in general the aim of all the parties is to settle the leaky building case at an earlier stage without incurring the cost of trial. Leaky homes cases are often settled at a private mediation, or alternatively at a Judicial Settlement Conference (JSC).
These can take place at any stage during the course of proceedings, although usually there is little point in them taking place until the discovery and interlocutory stages are complete. A private mediation is voluntary. Nobody can be forced to attend a mediation.
They are 'without prejudice', which means that statements made or information exchanged at them cannot be used against any party at a later stage of the leaky buildings case. They are confidential and usually, if a settlement is reached, it is on the basis that the settlement is both confidential and without any admission of liability.
What is a Judicial Settlement Conference?
A Judicial Settlement Conference is a Court run mediation and if ordered by the Court (either upon the application of one of the parties or by the Court's own initiative) it is compulsory for all parties to attend. However, that does not mean that it is compulsory for any party to make a settlement offer. It is run on the same basis as a mediation and is by no means a guarantee of a settlement.
Typically, if mediation or a JSC ends up resolving a leaky building dispute, a compromise may be necessary from all parties. All parties need to assess what the alternative is to settling at mediation. Usually, this involves consideration of the cost, time and risk involved in taking the matter to trial. Plaintiffs may settle at a figure less than their best case at trial, and defendants will pay more than they would have liked, to achieve certainty and minimise / avoid the risks / costs of the trial taking place.
At a mediation or JSC, the private mediator, or the judge, takes a neutral, non-judgmental role. His or her role is to facilitate the parties to discuss the strengths and weaknesses of each case and to reach a compromise. The onus is on both sides to persuade their opponents how good their case is.
Therefore, the timing of a mediation or JSC is often a strategic consideration. Whilst a plaintiff might want to have an early mediation / JSC, it may be the considered opinion of the solicitor that they'd be better to wait until nearer the leaky buildings trial and after briefs have been served, in order to put more pressure on the defendants. There is no wrong or right answer, but an experienced solicitor should be able to guide a client as to the most effective timing.
It may take more than one attempt at mediation to settle the case. A defendant might think that a plaintiff does not have the resolve to take the case to a trial, but then will settle when the briefs have been served.
A settlement offer can be made at any time - even on the 'steps of the Court' i.e. the week or even the day before the trial is due to commence. Whether it's accepted, or not, is up to the plaintiffs to decide, guided by their solicitor.
Leaky Building Litigation Process
1. Commencing leaky building proceedings
2. Discovery and inspection
3. Interrogatories
4. Interlocutory applications
5. Evidential witness statements
6. Mediation / Judicial Settlement
7. Conference
8. The leaky building trial
9. Leaky building legal costs
10. Role of leaky building experts
11. Damages
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