Mediation, why not?

The Regulation on the guarantee plan for new residential buildings provides that a beneficiary or contractor dissatisfied with the decision of the administrator of a guarantee plan may refer the decision to arbitration¹. A hearing will then be held, with all the formality that this implies, and a decision will then be rendered by the arbitrator, which is final and cannot be appealed.². Is it mandatory to go through this rather rigid dispute process? Isn't it said that the worst settlement is better than the best trial?

In order to try to reach an agreement on the dispute between them, in addition to recourse to arbitration, it is possible for the parties to use mediation.³. To this end, the legislator has chosen to include in the Regulation an alternative method of conflict resolution, which is more flexible and different from the conventional dispute process including a third party in charge of resolving disputes.

To take advantage of mediation and attempt to reach an agreement, the contractor and the beneficiary must agree to submit the dispute to a mediator selected from a list drawn up by the Minister of Labour within 30 days of receiving the decision by registered mail. Once the request for mediation is received, the Minister of Labour will designate the mediator selected by the parties.⁴.

The parties may then, with the help of the mediator, whose costs they assume equally, unless otherwise advised.⁵, negotiate an amicable settlement to the dispute between them. Unlike arbitration, the administrator can choose whether or not to participate in mediation.⁶, in which case, he will assume a third of the costs⁷.

If an agreement is reached, it will be recorded in writing by the mediator and signed by the parties in order to bind the parties and the administrator.⁸. If the administrator participates in the mediation, he must ratify the agreement in order for it to be binding on him. Obviously, an agreement cannot derogate from the requirements of the Regulations.⁹, which is of public order.

In the event of failure of the mediation, it will be possible for the parties to refer the case to arbitration within 30 days from the receipt by registered post of the mediator's opinion noting the total or partial failure of the mediation.¹⁰. Note that exchanges remain confidential¹¹ unless the parties agree otherwise.

In conclusion, considering that the parties have developed a relationship between them in view of the contract agreed for the purchase or construction of the building, they should build on this relationship and attempt mediation in order to resolve their dispute themselves and thus avoid it being settled by a third party. This is all the more a solution to consider in certain cases where the situation is not eligible for warranty coverage under the Regulation, but could benefit from the conventional quality guarantee.

DID YOU KNOW THAT?
For the purposes of the Regulation, an “building professional” refers to an architect, engineer or technologist who is a member of a professional order and who has a background in the field of engineering or construction.

1 Articles 19 and 35 of the Regulation.
2 Articles 20, 36 and 120 of the Regulation.
3 Article 98 of the Regulation.
4 Article 99 of the Regulation.
5 Article 102 of the Regulation.
6 Article 101 of the Regulation.
7 Article 102 of the Regulation.
8 Article 100 of the Regulation.
9 Article 105 of the Regulation.
10 Articles 19 and 35 of the Regulation.
11 Article 103 of the Regulation.

Consult the source publication