Is mediation worth the effort

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. 

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

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 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

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