How to fast-track strata conflict resolution

It is generally accepted that our states’ strata dispute systems are slow, frustrating and expensive – but isn’t there a way to provide instant answers before issues become serious problems.

NCAT and other state tribunals are like the weather – everybody complains about them but nobody does anything. The difference is that we can do something about NCAT and its equivalents in other states.

From what we hear, state tribunals are underfunded and clogged with cases, many of which should never have reached that stage and are only there because there is no viable alternative.

Take NSW Fair Trading’s mediation service, for example. If you get two people or an owner and a strata committee both convinced, rightly or wrongly that they are right, a mediation service is about as useful as a chocolate teapot.

Mediators are looking for compromise. Strata residents in disputes are often looking for a result. In any case, either side may only be there to tick the box that allows them to move on to the tribunal for a hearing.

Yet, a lot of these disputes could be easily resolved if someone in authority explained the law and its intentions and sent everyone back into their corners to consider their options.

For a lot of strata disputes, all that’s required is an informed and independent opinion – not a full-blown quasi-court with lawyers and laypersons indulging in verbal and legalistic gymnastics.

Recently in the Flat Chat podcast we suggested a fast-track, first stage dispute resolution system for strata owners and residents.

We’re calling it the Strata Panel.  It might look like a mixture of speed dating and Judge Judy but it’s a serious suggestion based on the idea of letting people who have lived in or worked in strata communities, and who understand strata law, decide how disputes should be resolved.

Given that many strata disputes stem from one or other (or both) of the combatants not understanding their legal rights and obligations, the injection of knowledge, logic and experience would work wonders.

The way we see it, you would set up panels of three “experts” – say one current or retired strata lawyer, one current or retired strata manager, and one independent expert, such as a Fair Trading or Consumer Affairs mediator.

The plaintiff would then have ten minutes to plead their case, the defendant would have 10 minutes to put theirs and there would be 10 minutes for questions from the panel and advice to the participants about relevant laws.

The panel would confer in private for 20 minutes then give their verdict, explaining  the basis under strata law on which they reached their decision, as well as the reasons for a dissenting vote on the panel.

In the case of a majority decision, the “loser” would be advised to reach an agreement or compromise with the “winner”, but told they could still proceed to a Tribunal, as this would be counted as a required mediation.

In the case of a unanimous decision, the loser would be advised that they could still proceed to NCAT but that they may have little chance of success.  Not only that, but the Tribunal might also award costs against them for running a demonstrably ill-founded or vexatious case, a penalty that’s already allowed by Tribunal law.

Meanwhile a second panel would be hearing the next case and they would overlap in this way throughout the day, providing instant decisions within each hour.

This would not replace the current NSW Fair Trading mediation or its alternatives in Victoria and Queensland – but it would offer an option that provided quick and simple answers to conflicts that mediation can’t resolve. Mediation could still be offered where either party was unwilling to participate in the Panel process

Why is this even necessary? Firstly, mediation is viewed in NSW strata (at least) as a box-ticking exercise, a necessary step en route to the Tribunal. 

Owners and residents can get frustrated that they don’t get a result at mediation which is geared towards getting strata owners to reach an agreement, rather than declaring who is right or wrong.

NCAT and other states’ tribunals are currently clogged with cases and there are long delays which can lead to disputes festering and growing. 

The intended lawyer-free process is anything but with strata committees and individual owners often racking up huge legal fees.

A fast-track process would allow for immediate results without impinging on anyone’s existing rights.

A trial could easily be rolled out. If it worked, it could bring relief to strata owners and committees who are in debilitating disputes.

Strata Panels would be both efficient and educative – you could even conduct it on Zoom and live-stream it for other strata owners to see.

Would NSW Fair Trading – the largest such government agency in the country be interested?

We sent this proposal for Customer Service’s consideration three weeks ago, apart from a brief acknowledgement, nothing. We know they are very busy people, but what’s that phrase again?  Oh, yes.  Justice delayed is justice denied.