High cost of choosing wrong Tribunal tactics

Good article.

I have enjoyed success recently at NCAT, as the applicant, where the respondent was a tad “economical” with the facts and dragged out NCAT proceedings unnecessarily. Earlier the respondent kept changing mediation dates. When I declined to agree to yet another change of date the respondent sought for one of several mediation sessions, the registrar agreed with me and binned the planned mediation and instead offered me a direct route to NCAT, rather than delay mediation by 5 weeks as the respondent sought.

If I may suggest a strategy that worked for me at mediation and at NCAT and should work for others: put together your application for mediation (a prerequisite , in most cases, for a NCAT hearing) as though it’s the NCAT application you’re preparing or say, the “claim” you will provide to the local court, if you think you’ll end up there. That is, right from the get go,  be transparent in what outcome you seek and include every bit of evidence you intend to rely on at every step where you plan to seek redress, starting with mediation. In short: include chapter and verse of the relevant facts.

Accept the dates offered you by Strata Mediation and/or NCAT, unless you honestly cannot attend at those times.

That way the mediator and the Tribunal Member (if it ends up at NCAT) or the magistrate (if it ends up in the local court) can all see you as transparent. And that’s the impression you should want the presiding officer to a hold of you.

Furthermore, treat mediation as a BIG DEAL. A really BIG DEAL. Here attendance is optional and in my experience, some parties do not attend (and they re not penalised) and often some parties’ preparation for mediation is akin to toddler trying to feed herself pasta: the contents end up nowhere near where they should be. Instead they end up all over the place. In the toddler’s case, all over the kitchen and at NCAT, good arguments are strewn in an incoherent manner and piles of evidence need to be waded through to get to the point.

I have no idea why some prepare poorly for mediation. Perhaps some think they can “wing it” on the day and some think the other party will see that time and money is needed to progress the matter to NCAT and  hence will consent to an agreement reached at mediation.

The most important lesson I learned at mediation is that agreements made by a party are not enforceable on their own. The party expecting the other party to honour its word must to NCAT to enforce it. That is, if a party agrees to do something or pay something can, as happened in my case, disown their own written agreement. This forces me to go to NCAT  and ask NCAT to order them to comply.

Mediation is not a dress rehearsal for NCAT. It is an opportunity for the parties to negotiate their own solution, on their own terms. Once they arrive at NCAT they will be subject to the solution imposed upon them by the tribunal.

If the matter is not resolved at mediation that does not mean the mediation has been a waste of time. Parties can learn useful information about the motivation of the other party, how far apart from resolution the parties are, and insights into the likely manner the other party will run their case. You can better understand which aspects matter most to them. This all helps with preparing a strategy for NCAT, or the possibility of reaching a settlement further down the line.