Mediation: The umpire strikes out

…and I thought I was the only one who got a mediator off-side!

Whilst there’s no legislative requirement for those involved in Strata disputes to attend mediation, the Adjudicators take a dim-view of any party to a dispute that has not first attempted it.

So in my opinion it’s a bit of a faux job-creation exercise for those mediators employed by the NSW Department of Fair Trading (DFT), “faux” because despite the fact that people in the Strata Division of the NSW Civil and Administrative Tribunal  will actively point the parties in the direction of the DFT, there are other options for Strata dwellers to fulfill their obligation to attempt mediation.

I’m referring to services provided by the NSW Community Justice Centre, the NSW Law Society, and to a lesser extent the websites of Professional Associations that provide a search facility to enable parties to locate trained private-sector mediators who specialise in strata / community disputes and whose time-based fees may facilitate a quick resolution.

Slightly off-topic, but I wonder when those Special and General Members of the Tribunal who hear the majority of matters will need to hold formal legal qualifications and have relevant experience as opposed to just being able, to “represent a sector of the public in relation to any one or more classes of matters in respect of which the Tribunal has jurisdiction”.

As someone who could, in a totally unbiased way of course, represent that sector comprising owners corporations, I could qualify as a General Member; how silly is that? Answer…..very, which to some extent explains why the current system of adjudication is broken, and consequently why it’s so underutilised.

I had a similar experience last year when I, too, did the hand-holding thing. My friend, a Chinese Australian with a good grasp of English but not confident in a public forum, has owned an investment unit for some years.

A few years ago, with the full knowledge of the body corporate, my friend renovated her first floor unit, replacing the carpet with floor boards and upgrading the bathroom and kitchen. The unit has been consistently rented to a succession of tenants with no complaints received or problems encountered.

And then the ground floor unit immediately beneath my friend’s apartment changed hands, the new owner moved in, and the fun began! From that moment on, my friend received a barrage of complaints about the noise emanating from her unit. The complainant stated that he likes to retire at 9pm and could not cope with any sound whatsoever after that time (yes, you might wonder why such a sensitive sole would contemplate life in an apartment). He was adamant that someone was clattering across the timber floor in high heels late at night, banging doors, and generally disrupting his lifestyle. He was also adamant that the timber floors had been installed without the appropriate insulation (not true – my friend had already provided an acoustic certificate to the strata manager and body corporate) and without permission from the body corporate (my friend had been advised in writing by the strata manager that the ‘committee is not required to provide approval’, but had nevertheless asked the EC for feedback as a courtesy. At that time, there were several other owners who had already replaced the carpets in their units with timber flooring. The EC therefore expressed no concern at my friend’s plans.)

The complaints continued over several months with much associated email correspondence. My friend decided the best way to fix the problem was to compromise – she placed a large rug in the room above the complainant’s bedroom. The complainant was still not satisfied – his sole aim appeared to be to force my friend to replace the timber floors with carpet.

And then one day the strata manager issued a breach notice. How is it that a breach notice can be issued on the strength of one person’s word against another? And why is it the responsibility of the receiver of the breach notice to prove their innocence? Guilty until proved innocent perhaps?

To cut this already long story a touch shorter, the to-ing and fro-ing by email continued, and it was then that my friend asked me to help. I’ve no expertise in strata law but do live in an area governed by a Community Association. I’ve been the chair of the CA EC for a number of years and have some experience dealing with the trials and tribulations of community living. We decided it would be best to pay for ‘professional’ mediation at Fair Trading to sort my friend’s problem once and for all.

At mediation I met for the first time with the complainant and the Chairperson of the Body Corporate EC. Over the course of the dispute period, the Chairperson had been expressing her sympathy for my friend’s predicament. However, on the day of mediation, she appeared to have switched her alliance! It was two against two!

The complainant shouted his way through the process, with the odd jibe from the Body Corporate Chairperson adding fuel to the fire. The complainant protested that my facial expressions (possibly the odd eye roll but more likely a look of horror at his appalling behaviour) were intimidating him. The mediator chided me for being unhelpful, but despite consistent yelling and table thumping from the complainant, and my request that she ask him to stop, he was allowed to continue uninterrupted.

It was pretty apparent that the mediator was well and truly intimidated by his objectionable behaviour.

In summary, the mediation session was a complete waste of time and money. The mediator was certainly not equipped to manage the complainant’s offensive behaviour and, as she’d clearly stated she wasn’t in a position to give advice, the whole thing seemed a pointless and unproductive exercise.

After that session, my friend, who is generally very mild mannered and accommodating, was very angry and more convinced than ever that the complainant was in the wrong and she in the right. She was not prepared to budge an inch. And so the drama continues.

How unpleasant for all concerned and, it would appear there’s no cut and dried solution.

Brief mention has been made of the mediation fascioity of NSW “Community Justice Centres ” (part of NSW Attorney General and Justice Department).

They have been providing FREE co-mediation (two mediators) sessions,anywhere throughout NSW at convenient venues and times,all to suit attendees.( since the early 1980’s).

With a success rate of over 85%,mediators are highly experienced (in mediation that is).They do not offer “opinions” nor give “advice”,but simply assist the parties to identify areas of conflict and help them work toward a “settlement” that they both can live with,getting on with their lives,without conflict.

The areas/matters at issue are not the problem,what is, the willingness of each to listen (politely- preferred) ,begin to understand why the other party disagrees over what issues,then as directed by  experienced co -mediators,discuss how they can be settled or best accommodated.

Co mediators,”may” have considerable experience in the issues ,but will never offer advice or promote a solution,this can only come from the parties attending.                                                                                                   

Any agreement is that only of what the parties attending mediation have agreed.Is it “technically correct? legally binding? staement only of facts?” Yes or No,is not he point.What is ,that the parties have an agreement,something they themselves have “nutted out”,something they can live with.

Parties are encouraged to agree to return to Community Justice Centre mediation If there if there is any problem with the workability of the agreement terms.

One basic diffence with DFT mediation is, at CJC both parties must agree to attend,neither can be compelled.Parties attending should be all those that can help in working toward settlement .Both arties will be asked to agree with proposed attendees.

This is not a “paid” advertisement” for CJC but simply an endorsement of what is on offer in NSW.It would be interesting to hear from any Flat Chat members who have used this fascility,particularly on real estate, neighbour or strata matters .