The Building Safety Act 2022 (“BSA”) has generated a new and fast-growing category of dispute: who is responsible for the cost of remediating unsafe buildings, and how much should each party pay.
According to a recent article in Inside Housing:
“There are 98 claims in the High Court continuing since 2018 over who will pay for unsafe cladding after the Grenfell Tower fire killed 72 people. The cases involve developers, housing associations, councils, architects, builders and government departments, and have a combined value of more than £1.2bn. The data was collected by litigation analytics platform Solomonic and is based on claims tagged with the topics of Grenfell, cladding, defective cladding, fire safety and fire safety engineering, the Building Safety Act, the Fire Safety Act 2021 and the Defective Premises Act. Since 2018, of the 60 claims issued referencing the Building Safety Act 2022, 32 are ongoing, with a value of more than £570m.”1
As these disputes work their way through the First-tier Tribunal (Property Chamber) (“FTT”) and the Technology and Construction Court (“TCC”), there is an obvious and proven role for mediation in BSA disputes. This article addresses the disputes that are suited to mediation, and how to get the best out of the mediation process.
Not every BSA dispute is suitable for mediation…
Some BSA applications are not, in truth, disputes at all in the sense that mediation assumes. An application for a remediation order under section 123 BSA is made to the FTT by an “interested person” (which includes the regulator, a local authority, a fire and rescue authority, or a person with a legal or equitable interest in the building) asking the tribunal to compel a landlord to remedy specified defects within a specified time. It is, in substance, an application for a form of specific enforcement, not a bilateral argument about legal rights that a mediator can help the parties compromise. There may be no room for compromise on whether unsafe cladding needs to be removed, and a landlord facing such an application may gain little by mediating the underlying obligation to fix a dangerous building, though the timetable and methodology for works could be worth mediating in the right circumstances.
But some definitely are…
By contrast, an application for a remediation contribution order (“RCO”) under section 124 BSA raises exactly the kind of question mediation is well able to resolve: who, among a developer, its associated companies, a landlord and others in the chain, should pay for remediation costs already incurred or still to be incurred, and how much should each pay. The FTT decides RCOs on a “just and equitable” test that Parliament left largely undefined2, and in Triathlon Homes the FTT ordered payment of close to £16.8 million to East Village across five buildings, having weighed factors such as where primary responsibility for remediation costs should fall as between developer and associated entities ([265]-[266])3 and rejected arguments based on changes in beneficial ownership or the existence of alternative fault-based claims4. That is precisely the territory of competing narratives about responsibility, historic conduct and ability to pay that experienced mediators deal with every week.
Moreover, even where the parties have not made applications for relief under the BSA, the same issues may arise in respect of the liability for, and costs of, remediating building safety defects, including new causes of action provided under s148 and 149 of the BSA in respect of construction products and cladding products. S148 and 149, and the extension of the limitation period have increased the scope of potential claims and have permitted claims to be made that were previously statute-barred, but there is solid experience of the successful mediation of many, usually multi-party, fire safety mediations even before the BSA came into force, where limitation was not an issue.
The Supreme Court’s recent decision in URS Corporation Ltd v BDW Trading Ltd5 (concerning structural engineering, rather than fire, safety defects) has widened the pool of parties who can be drawn into these disputes still further. The SC held that a right to contribution under the Civil Liability (Contribution) Act 1978 arises once a party has paid, been ordered, or agreed to pay compensation for the damage in question (and remedial works carried out in kind count as such payment) without any need for a prior judgment, admission or settlement establishing liability against the party from whom contribution is sought6. It also held that section 135 BSA’s extension of the limitation period to thirty years applies retrospectively, not only to direct claims under the Defective Premises Act 1972 but to related negligence and contribution claims too, the Court emphasising that a central purpose of the BSA, and of section 135 in particular, was to hold those responsible for building safety defects accountable7. Developers can pursue the whole supply chain for historic defects without waiting to be sued themselves first.
Multi-party liability disputes: expensive, court-hungry, and ripe for mediation
The apportionment of liability for remediation costs on larger developments is very often a multi-party dispute: developer, main contractor, subcontractors, employer’s agents, architects, structural and fire engineers, mechanical and electrical engineers, suppliers of components, building control and their respective insurers may all have played some part, and each will typically say the real fault, and the real cost, lies with someone else.
The practical consequence is more parties, more issues, and more cost. Multi-party TCC litigation of this kind routinely runs into seven or even eight figures in costs alone, occupies weeks of court time and takes a long time to get to trial, even with the TCC’s proactive trial management. Mediation, properly structured, can bring every contributor to the same table and produce a global, commercially sensible apportionment in a fraction of the time – a particularly valuable outcome where, in developments such as the Olympic Village in Triathlon Homes, the sums and the number of interested parties are large.
The courts expect it
Readers will be well aware that the overriding objective in CPR 1.1 now includes, as part of dealing with cases justly, “promoting or using alternative dispute resolution”8. The court’s case management duties in CPR 1.4(2)(e) extend to “ordering or encouraging the parties to use, and facilitating the use of, alternative dispute resolution”, and CPR 3.1(2) (o) gives the court an express power to “order the parties to participate in alternative dispute resolution”.9
The TCC Guide makes clear that:
“Litigating parties are expected to give serious consideration to alternative dispute resolution (“ADR”). If ADR has not been attempted the Court will expect the parties to explain why this has not been done. The Court will normally be willing to make directions to facilitate ADR and in appropriate cases it will order the parties to engage in ADR”10.
Further detail on ADR and mediation specifically is included at Section 7 of the TCC Guide and there is a draft ADR order at Appendix E. Section 9 of the TCC Guide deals with BSA Business and encourages ADR for BSA cases at paragraph 9.2.9.
Given the scale, cost and multi-party character of remediation liability disputes and the heavy use of the Courts’ resources involved in hearing these cases, this is exactly the kind of case in which a TCC judge, or the FTT, or the TCC and the FTT exercising joint case management powers11, will expect an attempt at mediation. Moreover, the TCC Guide makes it clear that the Court may order the parties to undertake ADR and it will use that power where it is necessary and appropriate to do so12.
The particular challenges
Mediating these disputes is not straightforward. There are usually multiple parties in the room, each with its own commercial and insurance pressures, and each inclined to allocate a high percentage of blame to everyone else and a correspondingly low percentage to itself. That dynamic, multiplied across four, five or more participants, creates rich scope for impasse: parties may dig into unrealistic positions on both liability and quantum, and the negotiation can fragment into a series of bilateral stand-offs rather than a genuine multilateral negotiation. Resolving such disputes requires skill, experience and creativity.
Getting it right
A lot of factors influence settlement at mediation.
These are important:
First, choose the right mediator:
- Subject-matter knowledge of building safety defects and remediation is important. Interaction with the Building Safety Fund and other remediation funding schemes, the interests of leaseholders (often unrepresented by lawyers) and the retrospective 30-year limitation period (which brings in parties, and evidence, beyond the norm for construction disputes) all add layers of complexity.
- There is a better chance of success with a mediator who has real experience of mediating genuinely multi-party disputes, with multiple insurers, and multiple layers of insurance. They need to be experienced in working through impasse when parties are not being realistic about risk allocation. There is no substitute for having done it before. If there are more than four parties, the logistics are such that it is wise to appoint two co-mediators.
Second, start early and prepare properly. Involving the mediator well before the mediation day, so that they can engage individually with each party and their advisers, is a sound investment. For example:
- It means that barriers to settlement (gaps in the technical or costs information, uncertainty over who actually has authority to settle and the limits of that authority) can be identified and resolved in advance of the mediation.
- It gives the mediator time to work to ensure that the right people attend the mediation.
- It allows the mediator to begin building the trust and confidence that a multi-party mediation of this kind will need if it is to succeed on the day.
Third, use the mediator:
- Remember that you can give the mediator material for their eyes only: to explain your position further, to identify constraints, to allow them to engage with your client’s specific problems without alerting the other parties.
- If you have a problem, engage the mediator to help you solve it.
- Remember that it is the parties’ process. Share your ideas/concerns with the mediator; try out offers with them; ask them for suggestions.
- Allow the mediator to be creative and be open to novel approaches to breaking impasse.
Conclusion
None of this is automatic. Construction lawyers advising on remediation liability disputes need to work out early which category a dispute falls into: a bare remediation order under section 123 will not be resolved by mediation, whatever the courts’ current enthusiasm for ADR, while a multi-party RCO or contribution dispute almost always stands to benefit from it. Where mediation is right, the discipline lies in the preparation at least as much as the day itself: a mediator chosen for genuinely relevant experience rather than availability, brought in early enough to get under the skin of a multi-party, multi-insurer dispute before everyone sits down at the table. Mediation has a very high success rate. It is a nimble process which, even in complex cases, can be arranged in weeks, not years. Get that right, and mediation can produce, in a fraction of the time and cost, what years of TCC or FTT litigation might otherwise take to achieve. The costs saved can be diverted to the essential remediation work the BSA was designed to tackle.
1 See Grainne Cuffe, Inside Housing 14 September 2026.
2Triathlon Homes LLP v Stratford Village Development Partnership, Get Living plc and East Village Management Limited [2024] UKFTT 26 (PC) at paragraph 236 and following. The FTT decision was appealed and leapfrogged to the CA: Triathlon Homes LLP v Stratford Village Development Partnership & Anor [2025] EWCA Civ 846 (8 July 2025). The appeal was dismissed: the FTT’s application of the “just and equitable” test was upheld, and so was the finding that section 124 of the BSA had retrospective effect, allowing RCOs to be made for costs incurred before the BSA commenced on 28 June 2022.
3 Triathlon paragraphs 265-266.
4 Triathlon paragraphs 251-254, 261-2. 5 [2025] UKSC 21. 6 URS paragraph 212.
7 URS paragraphs 104-117.
8 CPR 1.1(2)(f).
9 Those amendments followed directly from Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416, in which the Court of Appeal, including the Lady Chief Justice and the Master of the Rolls, held that the court can lawfully stay proceedings or order the parties into a non-court process (paragraph 58), provided the order does not impair the very essence of the claimant’s right to a judicial hearing, pursues the legitimate aim of resolving disputes fairly, quickly and at reasonable cost, and is proportionate to that aim (paragraph 65).
10 TCC Guide Fourth Edition 2026 paragraph 1.1.4.
11 See Wallace Estates Ltd v Durkan Estates Ltd [2026] EWHC 2133 (TCC) 10 August 2026 on joint case management by the TCC and the FTT.
12 See TCC Guide paragraph 7.1.2 in reliance upon Churchill and CPR 1.1(2)(f) and CPR 3.1(2)(o).
