Why mediate? Considerations for strata and community title disputes

Building bridges is a key reason

This is a question I am asked about a lot. There are many reasons why you should seriously consider mediation.

The first is that in strata and community title disputes it is generally mandated that parties to a dispute must attempt mediation before they can approach the NSW Civil and Administrative Tribunal (NCAT) for orders. In other words, it is the first procedural step that must be taken in most disputes involving strata and community title schemes.  

More compelling reasons are that mediators are trained, neutral third parties whose role is to guide the parties through a process of investigating the dispute, generating options for potential solutions or partial solutions and to facilitate negotiation. Simply put, mediation can be very effective. Just as importantly in this context it can often help in mending relationships or build bridges between those in dispute. By this I mean that the parties should through the mediation process have gained a better understanding of the true issues in dispute and the reasons why the other party acted or failed to act and their reasons which, in the heat of an argument, can often be overlooked or misinterpreted.

Mediation is also relatively quick and inexpensive. Certainly, it is faster and cheaper than going to NCAT for a determination and, if an agreement is reached, there is a process to register the agreement as NCAT orders.  

Mediation in a strata or community title scheme can be difficult as parties representing the owners corporation or the community association (or precinct or neighbourhood association) must be given authority to attend the mediation and to settle the dispute. This may require a meeting to be held to pass resolutions to do so.  It may also be that even if representatives attend the mediation, they cannot agree to what the other party is seeking as the legislation requires that a particular decision be made by an ordinary, special or unanimous resolution to be passed at a general meeting. For this reason, when representatives attend mediation on behalf of an owners corporation or community association they need to be clear as to what authority they do and do not have.

For instance, if the dispute is in relation to whether or not a common property by-law was unreasonably refused, then the representatives cannot agree to pass an amended by-law. This is because adding to the by-law for the scheme requires a special resolution to be passed at a general meeting.  Instead, the representatives may be able to agree that they will personally recommend that lot owners vote in favour of a new proposed by-law as negotiated at the mediation. They may also agree to call another general meeting to enable a new version of the disputed by-law to be considered within a set time frame.

The key to mediation is to prepare, prepare, prepare. While you can lead a horse to water, you cannot make it drink, however you can be prepared and with a little good will, effort and creativity it may be possible to offer the horse other options that are equally pleasing to both of you.

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