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.