Mediation and misplaced expectations of a win

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We hear a lot about mediation and conciliation in apartment living disputes – but what do the terms mean?

Many apartment residents go to mediation thinking they are going to get a ruling from a strata referee.  They probably won’t. So what’s it all about?

The process is all about getting people who are involved in a dispute to see each other’s side of the story, and perhaps to agree to differ.

The flaw in that theory is that some people simply can’t see the other point of view, or the dispute has gone on so long the original cause has been superseded by the to-and-fro of their damaged relationship, or one party doesn’t want to budge and doesn’t give a stuff about the other person’s point of view.

What it isn’t is a lower court where you will get a result.  However in many states, including NSW, it’s a mandatory step before taking the isssue to a tribunal.

The three major states for apartment blocks – NSW, Victoria and Queensland – have similar but, predictably, significantly different systems for strata dispute resolution.

So let’s start with the basic idea that a resident is in dispute with their owners corporation (body corporate) or vice versa.

In NSW, as elsewhere (and even in this column) talking things over is the recommended first step.  However, dialling down the Kumbaya factor for a second, there are many disputes where owners are incapable of having a reasoned discussion and so an independent process has to be available for any resolution.

In NSW the first step is to approach Fair Trading for mediation, a process that starts with a fairly simple online form, although you have to have tricky stuff like your strata plan (SP) number and your strata manager’s company address and phone number to hand.

Mediation is a mandatory precursor to action at the Tribunal for all but a few complaints or requests for orders at the NSW Civil Administrative Tribunal (NCAT).

The mistake most applicants make with mediation is that they think they are going to get a ruling (preferably in their favour) on the issue in question. They won’t – Fair Trading doesn’t do that.

What they will get is someone with some knowledge of how strata works, who will try  to get both sides to agree to disagree. It can be a win-some-lose-some result and for many it’s merely a laborious but necessary step to get to the tribunal, where the real action is.

By the way, only the complainant has to attend mediation.  The other side doesn’t even have to turn up and often chooses not to.

But it’s only after that that the complainant can seek an adjudication at NCAT. Google “NSW Fair Trading strata disputes” to get to the relevant Fair Trading web pages that will tell you exactly how to proceed.

In Victoria, every strata scheme must have its own internal dispute resolution scheme but its use is not compulsory and if it fails to produce a result, different options kick in.  If the owners corporation is the plaintiff, they go straight to the Victorian Tribunal (VCAT).

If a resident is the plaintiff, they can go to the Dispute Settlement Centre, Victoria, where they offer a possibly faster and cheaper result. But neither party has to take that step if they don’t want to.

After that, VCAT is the next port of call, where they will make an adjudication on the merits of the case and, if necessary, issue orders.

Google “Vic strata disputes” to find their fact sheets on owners corporation dispute procedures.

In Queensland, you must show proof that you have attempted to resolve the issue personally before you can apply for conciliation through Office of the Commissioner for Body Corporate and Community Management (BCCM).

And in most cases you must have attempted conciliation before you can apply to the BCCM for adjudication. Google “Qld body corporate disputes”.

Elsewhere in Australia, dispute procedures vary, including through local courts. Google “strata disputes” and your state and see what pops up.

Jimmy T and Sue W discuss mediation (among other things) this week’s Flat Chat podcast.

https://flatchatpod.castos.com/podcasts/346/episodes/flat-chat-wrap-38-mediation-revolution-and-crazy-planning-objections.

A version of this column first appeared in the Australian Financial Review

One Reply to “Mediation and misplaced expectations of a win”

  1. Avatar Jimmy-T says:

    This is now being discussed in the Flat Chat Forum

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