Is mediation worth the effort | NCAT - the NSW Tribunal | Flat Chat Forum: Your Questions Answered




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Is mediation worth the effort
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Pamster
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08/09/2016 - 12:35 am
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Not only  is mediation a waste of time, but the application process is an even bigger waste    of time and money... approximately $85.00!

In my experience the other party declined to attend on all but one occasion, in the one they did attend the OC sent their lawyer who charged $500 and did nothing to ease the situation. The matter naturally went onto NCAT which cost a further $90.00. You cannot lodge an application with NCAT for adjudicators orders without having attempted mediation..... seems like a money grabbing ploy to me especially when  the mediator has no power to enforce and anything contentious that is said in mediation cannot be used at NCAT.

NB: Since this was posted, NSW Fair Trading has
eliminated all fees for mediation.

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Sir Humphrey
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08/09/2016 - 8:39 am
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It sounds like you (collectively NSW, not anyone personally!) need to make NCAT operate a bit more like ACAT, the ACT equivalent. Here anyone can make an application for a small fee. Consideration of the matter starts with an informal Directions Hearing. This is like a mediation session except that it is with an ACAT member. If the parties reach some arrangement that is not illegal and both agree they can live with it, the ACAT will make 'consent orders' which are then binding. The ACAT member does not at this stage make any findings or conclusions or impose any solution on the parties. The ACAT member will try to act just as a mediator rather than a judge. 

If it is clear that a mutually agreed option is unlikely to be reached the matter will be set down for a hearing. Parties are warned that the Tribunal will then impose a solution which might not make either party happy. 

If the parties agree that further discussion might reach a solution that could result in consent orders they will be scheduled to return. 

In some cases the consent orders could be to do something else and report back.

For example, a unit owner was unhappy with an EC decision to not remove a tree from common property near his unit. At the directions hearing the EC agreed that if the OC directed the EC to remove the tree then it was obliged to do so. The EC agreed that it would call a general meeting at which the owner could put a motion to remove the tree. The owner put his case in a background paper distributed with the meeting notice. The EC also wrote a background paper for why it did not agree to remove the tree. A majority of owners voted to retain the tree. When we returned to the Tribunal for a second directions hearing, the ACAT member asked the owner if the meeting had taken place, what was the outcome, and did he accept that decision by the owners. He said he did not accept the outcome. The matter was then set down for a hearing. At the hearing the EC presented the evidence that two arborist had agreed that the tree was in good condition and a majority of owners wanted to keep it. The tribunal dismissed the application for orders that it be removed. 

In another example our EC initiated an ACAT matter when an owner refused to remove a fence that enclosed an area of common property. No solution was reached in the directions hearing/mediation but we agreed to negotiate further and a date was set to return to the Tribunal. Out of the Tribunal, the owner agreed to remove part of the fence that was entirely on common property. The EC agreed that another part could remain except that this fence was actually on a boundary between an adjacent unit and common property. The owner of that unit was happy for that leg of the fence to remain and to assume responsibility for it. We reported back to the Tribunal that we had a solution and received 'consent orders' for that solution. The unit owner complied with the Tribunal orders to remove the bit that had to go and all were happy. 

In yet another example, it was quickly clear at the directions hearing that no consent orders were possible and mediation would get nowhere with a unit owner with an unapproved alteration. Instead the matter was set down for a hearing. We had the hearing, and the EC got the orders it sought that the unit owner must remove the unapproved alteration by a certain date. The owner did not comply with the Tribunal order and now we need to go back, this time to the magistrates court, for enforcement orders of the Tribunal decision. This will not involve a reexamination of the facts or merits of the matter. Instead the EC will be seeking orders from the Magistrates Court for someone else to be appointed to do what the unit owner was ordered to do but failed to do. 

I think the ACAT does a good job of giving mediation or other solutions a go when it could work, coupled with the power to give the consent orders that make an agreed outcome stick. However, if mediation is clearly going nowhere, they can quickly and pragmatically move on to a hearing and an imposed solution. 

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Whale
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08/09/2016 - 9:27 am
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.....OR instead of NSW strata residents blindly accepting the Department of Fair Trading's (DOFT) not so subtle guidance to participate in the symbiotic relationship that exists between it and the State's Civil & Administrative Tribunal, use the free and independent mediation services provided by a N.S.W. Community Justice Centre (CJC)

I've twice used the CJC mediation service, and while it too relies on the willingness of the parties to participate in good faith, the process is far superior to that provided by the DOFT.

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pielover
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08/05/2017 - 2:24 pm
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Hi all,

A couple of general questions about mediation sessions with 'Fair Trading' :

1. Is FT only interested in strictly sticking to SSMA 2015 ? eg. " The issue between you two parties is addressed in the SSMA Section ABC and Section XYZ. It's all about your rights & obligations under the legislation ; everything else is secondary & inconsequential....OK ? "

2. Or, does FT seek to delve into other factors as relevant for the mediation. eg. abusive behaviours, misleading emails, the lack of transparency etc ?

3. I believe point 2 is relevant if it goes to NCAT though. Correct ?

thanks in advance

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Lady Penelope
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08/05/2017 - 4:07 pm
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pielover - An application to resolve matters through both NSW Fair Trading and NCAT requires a basis from within the SSMA 2015. In other words, there must be jurisdiction under the SSMA 2015.  

You may be able to raise your concerns about abusive behaviours, lack of transparency etc both through Mediation and NCAT Conciliation.

If you are having difficulty trying to work out which section of the Act is relevant when submitting a NSW Fair Trading application or an NCAT application and/or which Order to select then you are advised to contact NSW Fair Trading for assistance on 133220. NB: Your issue may not need to be Mediated first.

Mediation:

For a list of what is required before applying for Mediation from NSW Fair Trading see page 1 of the following Mediation application document: 

http://www.fairtrading.nsw.gov.....edform.pdf

The form for applying for Mediation asks 'what issues do you want to bring to mediation' and 'what are you hoping to achieve from mediation'? These are less 'formal' question than are asked on the NCAT application form. 

NCAT:

Most strata applications make it compulsory for Mediation to be carried out through the NSW Fair Trading before applying to NCAT. However, some strata applications do not require Mediation. It depends very much upon what sections of the SSMA 2015 are the subject of the Order, and what Orders you are seeking from the Tribunal. More than one Order can be requested.

A list of Sections of the Act that can form the basis of an Order, and a list of Orders that require Mediation prior to applying to NCAT (and those those that do not require Mediation) can be found at pages 5 to 14 in the following document. 

http://www.ncat.nsw.gov.au/Doc.....cation.pdf

Strata applications are listed for either (1) conciliation and hearing or (2) a directions hearing. The type of hearing will depend on the orders you are seeking​.

Conciliation creates an opportunity for you to:

  • tell your side of the story in a free and open discussion
  • listen and get a better understanding of the other party's issues
  • resolve the dispute mutually and quickly on the day
  • find a solution that makes sense to both of you.

Directions hearings are used for more complex strata matters.

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pielover
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08/05/2017 - 10:54 pm
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Thanks Penelope

'Fair Trading' has indicated the section of SSMA 2015 relating to the matter in question.

What is the easiest way to search/look up previous NCAT cases which deal with the same section ? I had a look at http://www.caselaw.nsw.gov.au and http://www.austlii.edu.au, but searching for a specific section in SSMA was not obvious.

Please advise, if you can.

thanks

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Lady Penelope
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08/05/2017 - 11:08 pm
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Are you able to indicate which Sections of the Act that you are interested in finding some cases on? We can probably help you track down some information for you if its out there.

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pielover
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18/05/2017 - 8:38 pm
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The matter is to do with passed by-laws which do not comply with the legislation, so Section 139 & Section 150 would appear to be the relevant sections,

thanks

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pielover
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22/05/2017 - 10:35 pm
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Just to clarify the above post...

I am trying to find previous cases relating to the following ie. passed by-laws which do not comply with the legislation :

Strata Schemes Management Act 2015 ( Sections 139 & 150 )

which equate to :

Strata Schemes Management Act 1996 ( Section 49 & 153 )

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