How to fast-track strata conflict resolution

iStock-1204262912.jpg

Fast-track strata dispute resolution - your time starts NOW!

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.

Newsletter

To subscribe (for free) to our weekly Flat Chat newsletter, bringing you links to our  latest posts, just click HERE.

Flat Chat Strata Forum Current Page

  • This topic has 3 replies, 3 voices, and was last updated 2 years ago by .
  • Creator
    Topic
  • #65521
    Jimmy-T
    Keymaster

      It is generally accepted that our states’ strata dispute systems are slow, frustrating and expensive – but isn’t there a way to provide instant answer
      [See the full post at: How to fast-track strata conflict resolution]

      The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
    Viewing 3 replies - 1 through 3 (of 3 total)
    • Author
      Replies
    • #65551
      Propertypaul
      Flatchatter

        I agree that the NSW Mediation process is useless as the OC just has to say no we don’t want to mediate and that’s the end of the process. I was expecting to have some kind of hearing. Taking something to NCAT is still very legal and not easy for the average owner. In my case I eventually got the OC to hold an extraordinary GM to appoint a Building Manager for another 10 years which I still objected to but at least they then followed the correct process.

        #65556
        TrulEConcerned
        Flatchatter

          @Jimmy

          Yes, a Strata Panel (with its duty to inform the parties as to what the law is and is not) is a very good option for lot owners and OCs  especially as it does not close the door on applying to NCAT if a party is so minded.

          While you’re on the reform beat, may I suggest another reform that is very much needed I believe: to the complaint process via FT when a lot owner has serious gripes with the conduct os strata agents.

          I understand that a lot owner writes to FT, chapter and verse about his/her gripes.

          FT  looks into the claim and if one or more parts of it has legs, then FT will take the matter up with the strata agent.

          But here is the rub: the lot owner will not be told

          * What the strata agent says in reply to the lot owner’s claims as relayed by FT to the agent; and

          * If FT takes any compliance action against the strata agent, the lot owner will not be given the details.

          Sounds like the legislation is dramatically skewed to the agents.


          @propertypaul

          I don’t understand why anyone would want to appoint a building manager (as in superintendent?) for more than 5 years as there could be significant changes in that period. It would be in the OC’s interest at the 5 year mark to reconsider re-appointing or not.

          As for strata agents, I never understood why OC’s offer terms >3 years.

          A 10 year contract – with I assume annual increases – smells fishy.

          #65558
          Jimmy-T
          Keymaster
          Chat-starter

            As for strata agents, I never understood why OC’s offer terms >3 years.

            Three years is the maximum for strata managers in NSW (with a one year limit on initial contracts for new buildings).  Building management contracts are expected to be brought into line in the mid-to-near future,

            The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
          Viewing 3 replies - 1 through 3 (of 3 total)
          • You must be logged in to reply to this topic.

          Flat Chat Strata Forum Current Page

          Flat Chat Strata Forum Current Page

          scroll to top