Mediation – An Alternative to Adjudication
February 10, 2020
Seneca (one of those famous Roman philosophers) wrote:
‘It is not that we have a short space of time, but that we waste much of it.’
That applies as much to strata disputes as it does to anything else.
Everyone has seen big ticket litigation in the Supreme Court on the news, with teams of bewigged barristers and lawyers walking their clients into courts.
Strata disputes are not like that.
Inevitably, everyone is more emotionally involved in a dispute over a strata issue than they would be in a corporate dispute over money in the Supreme Court. We are, ultimately, talking about people’s homes and investments. The buy-in is therefore strong from the outset. Community harmony is damaged as the dispute festers. Anonymous circulars get sent. Lawyers get engaged. Committee minutes include little niggles about the issue. Everything escalates in what should be a sanctuary – people’s homes. Your home is where you should go to get away from stress – not get more of it.
There are no hearings in strata disputes. The closest you get to that is usually compulsory conciliation at which no representation is allowed. You do that on your own. After that, if you don’t reach agreement, you go into adjudication.
It will take around two months to get to conciliation and then a further three months or so to get an adjudicated decision. That’s assuming your application is in order in the first place – no easy task, given the legislation is complex and the requirements about dispute resolution in particular are prescriptive. Then there’s the number of applications in the queue ahead of you. In my time as Commissioner, dispute resolution applications increased year on year.
Let me be clear that I am not being critical of my former office. Quite the opposite, as there is a need for natural justice and engagement with strata communities. Final decisions that are binding and enforceable need to have a very strict process to ensure there is very little room for error. Everyone needs to have their say. That takes time.
The staff of the Commissioner’s Office do a magnificent job in all of these circumstances in one of the most unique dispute resolution environments in the world. No other jurisdiction has the equivalent of the Commissioner’s Office. Everyone else in Australia has to have their strata dispute ventilated in the equivalent of the QCAT, which is far more like a Court than anything else.
Which leads me to why I moved to Hynes Legal.
Lawyers traditionally act for one side or the other. That is a service Hynes Legal has always provided and will continue to provide. I will be involved behind the scenes in some of those matters where I’m needed, but that is only one reason for my move.
I’ve worked with Frank Higginson and his team at seminars over the years and what I’ve come to understand about Frank is that he and I share a belief that there is room in the strata market for non-legal options to resolve disputes, create harmony and get people better informed and more engaged with strata matters. One of the ways I’m going to do that is through mediation, where we help parties resolve strata disputes quickly and effectively to allow everyone to move on with their lives.
Strata disputes are quite distinct from other forms of dispute. That is where we believe my experience as Commissioner and training as a mediator will allow us to help resolve issues.
Mediation is a process by which I hope to help people negotiate a mutually acceptable agreement to resolve a conflict. The parties to the mediation control the outcome. It is not ordered and I am not there to tell people what to do, although I will be in a position to provide my unique perspective. The scope for solutions in mediation is usually greater than the absolute remedies available in the judicial system and I have obviously seen many, many ways to resolve strata disputes over the years.
This offering is unique, so it is a leap of faith for both of us in terms of what we think the strata market needs. Obviously, our services will come at a cost. Compare that cost, though, with the costs of the alternative: months of time and effort expended, and perhaps more significantly the emotional expenditure involved. For the initial investment of time and money at mediation and the possibility of an outcome agreed upon by the parties rather than imposed upon them by adjudication, the cost-benefit outcome seems obvious.
There’s more that I can offer beyond mediation. Coaching, best-practice and a general, non-legal advisory line are some of the services that I’ll be providing, with the knowledge that Hynes continues to provide legal services as necessary. We are a specialist strata firm and as I hope everyone has come to understand by this point, legal outcomes are only one part of the overall strata recipe.
We would like to think we really can make a difference, which will then add more time back into everyone’s lives to be used in far more enjoyable pursuits. Seneca would, I think, support those endeavours.
I’m looking forward to speaking with and meeting as many of you as possible, in the same way I did as Commissioner. For more details, you can reach me at email@example.com or here on our website.
This article was contributed by Chris Irons, Former Commissioner and Mediation Specialist – Hynes Legal.