01/10/2018 at 8:59 pm #30522
Meddiation is a necessary prerequisite for most cases taken to NCAT, so it’s worth it for that alone. Also, remember the Fair Trading officer is a mediator, not an adjudicator. They may (or may not) be able to advise either side on points of law but their role is not to make a judgement on the case.
Mediation is an attempt to resolve issues without having to resort to the tribunal (NCAT). It is not an opportunity to compromise on the law – although your neighbours and some Fair Trading mediators may act as if that’s the case.
Mediation itself is a fairly low-key procedure. The mediator will try to make you feel as comfortable as possible and you may be invited to go off into a room with the other party to resolve the issue yourselves. You don’t have to do that if you don’t want to.
In your case, the law is quite clear. Residents have to obey the by-laws and Owners Corporations (through their strata committee) have to enforce them.
Parts (a) and (e) and (f) of Section 232 of the Strata Schemes Management Act (2105) cover disputes over “the operation, administration or management of a strata scheme …” and “an exercise of, or failure to exercise, a function conferred or imposed by or under this Act or the by-laws of a strata scheme … or a function conferred or imposed on an owners corporation under any other Act.”
If I were in your shoes, and the other side shaows no sign of conceding any ground, I would simply say that you are only there as the obligatory precursor to taking action under section 232 of the Act at NCAT.
The only compromise you can really accept would be a written undertaking that offenders will be warned not to park on common property and that the strata committee will take all means necessary to penalise offending drivers and, if necessary remove offending vehicle.
Failure to pursue this within the time agreed on the letter (and there should be one stipulated), or refusal to do so, will lead to action at NCAT requiring the strata committee to abide by Section 232, its own by-laws and the scheme’s Development Approval which limits the number of parking spaces.
Regarding section 232, in the second reading of the Act in parliament in 2015, then Minister Victor Dominello made it clear that this section was intended to require strata schemes to abide by their own rules, and not apply them selectively.
There is no compromise in that and you shouldn’t be expected to give ground. The law is on your side.
However, be warned that some Fair Trading mediators think their job is to stop people arguing by getting them to agree to disagree. You don’t have to do that, and you shouldn’t if it doesn’t get you what you want to achieve
Just hope you get a good mediator but be prepared in case you don’t. I have been to a mediation and I ended up explaining the law to the mediator (which went down really well, as I’m sure you can imagine)
If the strata committee doesn’t like the by-laws or the scheme’s development approval, they should change them through the proper channels.02/10/2018 at 10:01 pm #11935
I am a lot owner and this month will go to Mediation about very similar issues to Platform Shoes (HERE) regarding parking on common property lawns and in visitor spots and the OC voting not to issue Notices to Comply at our AGM.
If anyone has already been to Mediation and NCAT about similar issues I’d be interested to here what the outcome was, especially the OC voting not to issues Notices to Comply.
Thank you14/02/2019 at 4:08 pm #35791
I have mediation in 2 weeks with regards to the fact that I had a water-proofing issue in my bathroom and the strata at first said it was a strata problem and then said it was because I had had the bathroom renovated 8 years ago. Am I wasting my time going to mediation, should I just suck it up? thanks14/02/2019 at 6:28 pm #35793
Bear in mind that mediation is (from Fair Trading’s point of view) an exercise in compromise and getting a problem off the books, so to speak. They are not there to adjudicate on the rights and wrongs of the problem.
From your point of view, its a necessary prerequisite to action at NCAT and an opportunity to show the other side that you are serious. The actual strength of your case is an entirely different matter that can only be assessed by NCAT. But you can’t go to the Tribunal without having been to mediation.
I have been to mediation once and it was pathetic. The other owner wouldn’t undetake not to continue breaking by-laws (very loud parties that went on all night) and the mediator told me that I couldn’t complain about both the level of noise and the hours when it occurred.
It ended with me explaining (mansplaining?) strata law to the mediator (she loved that) and telling both of them that all I wanted was to tick the mediation box so I could pursue this at the Tribunal. That had the desired effect and the other party started to behave thereafter.
Now, I could have gone in there having told my contacts at Fair Trading what I was doing and it would have been a very different result. But I wanted to find out what it was like for people who don’t have a newspaper column to fall back on.
So keep your expectations low and if an acceptable compromise is offered, tell them you want it in writing by a certain date (maybe two weeks hence) or you will be proceeding to NCAT.14/02/2019 at 9:00 pm #35798
I agree with you Jimmy T regarding the handling & process of the mediation!
I left there with no say whatsoever and I honestly felt I was in a third world country with no other options, no rights and forced to come to agreement. both gentleman mediator & tenant advocate keep going on about their day to day experience and constantly reminding both parties as the process of going to the tribunal is long and very painful
note: I be going there again next week to deal with my previous agent, Strata management & Owners committee. I’m there to hear their side of the story and I will be directing my complaint at the Fair Trading for false information that leads me being penalised after I have moved from the property.
The joy of renting15/02/2019 at 1:27 pm #35801
Mediation is a useful step in bringing parties together and my experience has been positive. It turns out the other party were just hopelessly unorganised and usually had everything handled by their trust fund manager. They were very apologetic and thankful it didn’t get escalated.
Where mediation probably falls down is when one party just doesn’t give a stuff. In that case nothing will work except very firm action.17/02/2019 at 5:45 am #35846
Had I wish the other parties on case would have been more cooperative and I would have been more than happy to settle outside the Tribunal.
I can’t believe how some agent / landlord gets away in different kind stuff as off lately compare 20 years ago – or simply just me finding bad agent/landlord