- This topic has 5 replies, 4 voices, and was last updated 10 years, 11 months ago by .
-
Topic
-
Once upon a time I went to mediation at the NSW Office of Fair Trading and then to the Consumer, Trader and Tenancy Tribunal for a hearing to try and stop a shared apartment under us of nasty, inconsiderate neighbours from sharing their smoke with us. We had a new-born baby at the time and it was very stressful.
The ‘mediator’ seemed too young for the job, no more than 30 I guessed, unwise, and didn’t seem to know much about the NSW Strata Titles Act such as what parts the smokers might be breaching. Nor did I at the time but I’m wiser now, mostly thanks to Flat Chat.
The CTTT hearing was a stuff-up. I was prepared but the smokers, although they turned up, claimed they had forgotten it was on and hadn’t prepared due to them all being shift workers and, believe it or not, another date was set. The b
moved out, thank god, and the next hearing didn’t proceed.I am considering mediation again because our Common Property isn’t being properly looked after and my efforts to have it seen to, and even offers to help to supervise tradesmen etc. are being ignored by our EC and Strata Manager. (I was on the EC for quite sometime myself but now I’m locked-out by youngsters intent on reducing levies and not spending anything on upkeep.)
My question for Flat Chat experts is, are the mediators at the OFT supposed to be knowledgable about the Act, and if you sense that they don’t know what they’re talking about, can you politely suggest they call for a supervisor or something like that?
If, for example, I was to pull out a 10 x 8 photo showing our strata’s dreadful looking Common Property garden pathway with OH&S risks evident everywhere, might they say “Well yes, that is evidence that the Common Property is not being properly maintained. You must fix it up, Mr EC Chairman”?
-
Replies
-
I am involved in a legal case and have been researching mediation.
Its interesting reading.
In the court system, mediators are there to broker an agreeable solution between parties. Mediators are not legal experts and are not required to know the law. I reiterate, the mediator is brokering agreeable solution between the parties. The court ratifies the agreements and checks that they are within the law.
The mediators skill and role is to get parties talking and agreeing.
In any mediation session, you do not have to come to an agreement if you don’t want to. The next port of call is then the court where the head of the court will hear the facts of the case and make a determination based on the law.
Most lawyers will tell you that its better to get an agreement at mediation as it results in an ‘agreeable’ solution to all, rather than to go to the court or tribunal and get a strict legal ruling.
The courts use mediation in order to get faster and cheaper resolution to issues. You don’t have to agree to solve things at the mediation.
Robert
@kaindub said:
Mediators are not legal experts and are not required to know the law … The mediators skill and role is to get parties talking and agreeing.I agree … to a point. It is probably more important to have someone who can get people talking rather that an expert on strata law.
However, there is a huge lack of knowledge about strata law in the community, underpinned by myths, bush-lawyerism, ignorance and bias.
It really helps if the mediator can say, “Look, I know that’s how you feel but this is what the law says and your case has little chance of success if you proceed with that line of argument.”
As long as the mediator can present facts without appearing to take sides, then an informed and able mediator is so much better than someone whose only skill is knowing when to pass the talking stick.
But, as Kaindub says, ultimately the mediator’s job is to get people talking – they are not there to judge or adjudicate.
NB: One of Fair Trading’s top mediators, Michael Courtney, will be on the panel for Flat Chat Live on November 2. Click HERE for more details.
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.
Mediators are trained to be mediators, that is what they are there for. In many cases they may be legally qualified, but not necessarily in the subject matter. You might expect a mediator to have an awareness of strata law at the very least. Bear in mind that CTTT mediators don’t just deal in strata matters, as the jurisdiction of the Tribunal covers a wide range of areas.
However – in a mediation scenario the mediator can call in a strata law expert to advise one or both parties of what the law is. That happened with us only recently with an owner who was insisting on all sorts of things that were seriously in the realm of fantasy, so the mediator called in the expert who said no, that is not the law at all. Not that it did any good, but it was nice to have someone tell the owner he was wrong.
Jimmy’s point can’t be repeated often enough – the mediator is not there to make a ruling or adjudicate, they are there to facilitate a discussion of the issues and in the best case assist the parties to reach a resolution.
@JimmyT said:
@kaindub said:
Mediators are not legal experts and are not required to know the law … The mediators skill and role is to get parties talking and agreeing.I agree … to a point. It is probably more important to have someone who can get people talking rather that an expert on strata law.
However, there is a huge lack of knowledge about strata law in the community, underpinned by myths, bush-lawyerism, ignorance and bias.
It really helps if the mediator can say, “Look, I know that’s how you feel but this is what the law says and your case has little chance of success if you proceed with that line of argument.”
As long as the mediator can present facts without appearing to take sides, then an informed and able mediator is so much better than someone whose only skill is knowing when to pass the talking stick.
But, as Kaindub says, ultimately the mediator’s job is to get people talking – they are not there to judge or adjudicate.
NB: One of Fair Trading’s top mediators, Michael Courtney, will be on the panel for Flat Chat Live on November 2. Click HERE for more details.
Mr. Courtney is pretty good but if asked how does he reconcile the difference between what he preaches at strata seminars and CTTT outcomes he has got nothing.
Will anyone from CTTT be on the panel?@SMO said:
Mr. Courtney is pretty good but if asked how does he reconcile the difference between what he preaches at strata seminars and CTTT outcomes he has got nothing.
Will anyone from CTTT be on the panel?Can you be more specific? Please tell us (briefly) what Michael said at a seminar (or what you think he said) and what he did that was different. I’m happy to put the question to him at the Q&A and report back here.
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.
- You must be logged in to reply to this topic.