Commissioners Corner – Dispute Resolution Explained
Monday January 15th, 2018
I’ve spoken at some length in articles about the dispute resolution service my Office provides.
More generally, dispute resolution in the body corporate context can be thought of as a series of escalating steps which can, and must, be taken to reach resolution.
In this article, I will give an overview of these steps. While some of this may be quite familiar already, a refresher never hurts and indeed there may be aspects which will add a further clarity to dispute resolution.
Firstly, let’s think about the term “dispute”.
Sometimes clients come to my Office with a range of issues or concerns that are obviously causing them some distress. That said, whether or not there is a “dispute” at play might be a different matter.
Being generally ‘miffed’ about the way a meeting was conducted, for example, is not of itself a dispute. It is important that there be some specificity in order for there to be a dispute. This helps narrow the terms of what is being sought as an outcome and thus makes the dispute’s resolution a little easier to manage.
Another way of thinking of it is via this simple equation:
Specific request (some may view this also as a ‘demand’) made and request/demand refused = dispute.
With a specific dispute in mind, it is then on to the business of resolving it.
The very first step is making all reasonable attempts to resolve the dispute yourself.
This sounds self-evident enough but it is sometimes a point which gets lost in the emotion and challenges which a dispute brings about.
Body corporate legislation in fact requires that there be reasonable attempts to resolve the dispute yourself – known as “internal dispute resolution” or “self-resolution” – before accessing the dispute resolution service of my Office.
This self-resolution can take a number of forms. At its simplest, it might be talking to the other party to make your concerns plain. The mere act of talking like this can actually resolve a number of disputes there and then.
Undertaking self-resolution in writing is recommended, as it involves some formality and keeps a record of proceedings.
By sending an email or letter to the other party, outlining your concerns and what outcome you are seeking, you put the other party ‘on notice’ about where things are at in the situation and importantly, gives that other party a chance to consider and respond.
A further way of undertaking self-resolution is by putting a motion to a general meeting. This is clear evidence that you have taken the steps needed to resolve your dispute, as the matter will get voted on at the meeting and get minuted as a result.
If, after undertaking these efforts, you find that your matter is still unresolved, then you have effectively exhausted your options and at that point, my Office’s dispute resolution service becomes the next port of call.
You will need to provide evidence of your self-resolution efforts as part of lodging an application for dispute resolution with my Office.
In lodging your application, conciliation will be the first step in the vast majority of applications. There are only a limited number of instances in which conciliation would not occur in the first instance.
While I appreciate that many people would want to proceed directly to adjudication in an effort to get to the “umpire’s verdict” sooner rather than later, the reality is that conciliation in my Office sees excellent results in reaching agreements between parties – even for those situations in which the parties are absolutely convinced there is no way they would ever reach an agreement.
The other great benefit of conciliation is that it is all about voluntary, workable agreements nutted out between the parties in dispute and that in conciliation, my Office’s conciliator has a legislative responsibility to give information about the legislation.
The combination of all these factors is that the parties to a conciliation can come away from it feeling better informed as well as feeling as though there is a better opportunity to mitigate disputes in the future.
If conciliation is not successful – or if a matter is not suitable to be conciliated – then adjudication is the next step in the process.
Adjudication is a formal process based on written submissions which results in a legally-enforceable and appealable order. There are no hearings in adjudication and each adjudication application is considered on its merits. Information and material from conciliation is not admissible in an adjudication application.
Following an adjudicator’s order, my Office has no further role from that point unless ordered by a court of competent jurisdiction (e.g. an appeal of an adjudicator’s order). My Office also cannot interpret an adjudicator’s order or enforce the order – that is for the parties concerned to do.
Ultimately, at each of the steps of the dispute resolution process, there is an opportunity for the matters in dispute to be resolved and, indeed, the earlier it can be resolved, the better for all concerned.
For further information about the body corporate legislation please contact our Information Service on Freecall 1800 060 119, or visit our website www.qld.gov.au/bodycorporate.
This Article was contributed by Chris Irons, Commissioner for Body Corporate and Community Management