I want to give people some insight as to my reasons for joining Hynes Legal and in particular, why I strongly believe the strata industry needs a mediation offering to help reduce the instance of strata disputes in the Commissioner’s Office and QCAT.
I’ll begin with a question I’ve been asked a few times since starting with Hynes in February 2020: why would someone pay you to do something that you previously did for free?
It’s because of cases like this one. In summary, it’s a dispute heard in the Queensland Civil and Administrative Tribunal about management rights. In total, both sides – the body corporate and the management rights holder – incurred nearly $900,000 in costs. Almost a million dollars! Surely a better option is to spend much less than that as an initial outlay to try to resolve or even prevent a dispute?
The context here is that for more than five years I was Queensland’s Commissioner for Body Corporate and Community Management. Fun fact: it is the only body corporate Commissioner role in the world. Other jurisdictions, both in Australia and overseas, offer body corporate (also known as ‘strata’ or ‘owners’ corporations’) information, education and dispute resolution services. Yet no other jurisdiction provides these services in the one office and under the leadership of a dedicated Commissioner.
Each day in that role gave me a new appreciation for the challenges and rewards of being involved in the strata sector. I spent a lot of time getting out and about, visiting different parts of the State where I quickly learnt that body corporate issues varied by region to region. What is significant in Cairns is different to what’s an issue for bodies corporate on the Gold Coast. I also learnt that while there are many questions and disputes about what legislation says, along with a wealth of published orders and cases to provide guidance, there is also a strong need for a pragmatic approach to resolving issues and meeting educational needs. Particularly where legislation is not clear on things. In summary, I discovered that regardless of your role or perspective, being involved in a body corporate is not easy!
Which leads me to my new role with Hynes as a Strata Adviser. I felt I had achieved my main goals as Commissioner and had guided that Office to where it could continue to provide its excellent services. Yet there was part of me that was keen to do something more and which went a step beyond the ‘normal’ service delivery offering. I was particularly drawn to the idea that there was a place for non-legal approaches to sit alongside legal ones in body corporate issues. Let’s be clear: while I’m not a lawyer, I know that there will always be a need for legal advice or proceedings. When people are dealing with contracts, transactions and decisions worth a lot of money and having big implications for people’s property, as happens in body
corporate world all the time, expert legal advice is essential.
Ultimately, Hynes Legal is a law firm and continues to provide legal services. But what about the alternatives to legal services? I thought
of all the instances I encountered as Commissioner where it seemed that rather than parties engaging lawyers and seeing disputes progress past the point of no return, might there be a way which instead involves education or information? And not just the recitation of a section number or referral to a fact sheet, but education and information where there’s value added, containing suggestions for a best practice approach which might stand a body corporate in good stead into the future?
Then there’s alternative dispute resolution in the form of mediation. I know very well just how heated and intractable disputes can get in a body corporate context. Sometimes the dispute snowballs over months or years and in that time, the parties lose sight of the original issue. Instead, it morphs into a personality conflict or communication breakdown. While the Commissioner’s Office provides an excellent conciliation service, this service is limited to the types of disputes defined by legislation. There are plenty of disputes which don’t fall into this definition. Disputes involving
caretakers, for example, generally require legal proceedings – an exceedingly costly and time-consuming process for all concerned and one in which, even when a decision is finally handed down, the party which ‘won’ has still ended up spending a lot of money. Not to mention the sleepless nights and stress along the way. That’s not even considering how
the ‘loser’ might be feeling.
So I started to think that by providing mediation – a chance for parties in dispute to sit down in a welcoming, safe space and work through their issues under the guidance of someone like me who has a wealth of expertise in body corporate issues – I could achieve some of that ‘something
more’ I mentioned earlier.
Here’s a case study of the kind of dispute I can mediate and help you to resolve:
A caretaker and committee are having issues. It’s been going on for a while. The committee thinks the caretaker isn’t doing their job and point to a few things on the common property they think are lacking maintenance. The caretaker thinks they are doing everything in their contract and that the committee are expecting too much. Over time relations have broken down, communication is poor and the committee is talking about going to QCAT about the contract.
In actual fact the issues are all about communication and lack of understanding. The committee don’t fully understand the nature of the caretaking contract or the limits of their role as committee members while the caretaker doesn’t appreciate how committees make decisions. Perhaps also there’s a personal issue, where the caretaker and a particular committee member don’t see eye to eye personally.
Mediation can assist each side gain a greater understanding of each other’s point of view and then, by the end of the process, a chance to negotiate some outcomes. Those outcomes might be that there only be a single
point of contact on the committee, via a nominate type of communication. Or, that the caretaker undertake some basic retraining in certain duties.
In basic terms, here’s how the mediation would work:
You come along to a neutral venue or you attend electronically. I spend time with all of together clarifying the issues. That’s after I have already gotten some submissions from you before the mediation. I help you draw up an agenda of issues to work through. Then, I hold some private
sessions with each of you. I check how you are going and if you think there are any points on which you’d be happy to negotiate. After that, I bring you back together to continue that negotiation, using my expertise to reality check your ideas and test your assumptions about what works and
what doesn’t. By the end, we draw up a written agreement where you each agree to certain things. We sign that on the day.
Some key points to bear in mind:
• It’s confidential: I don’t share information discussed at mediation;
• It’s yours: you own the process, you drive it and it’s up to you to make it work;
• I’m impartial: I bring my expertise and knowledge to the process, I test your assumptions, I reality check and I give some indication of future prospects, if that’s necessary, but I don’t decide for you and I don’t arbitrate;
• Costs ideally are shared between the parties: there’s a better chance that each party would be motivated to negotiate if they share the cost. Although, it might also be the case that a committee would consider it reasonable to bear all the costs for the sake of having the issue resolved that they are dealing with. And finally, in case you need a reminder of benefits – bearing
in mind the story I talked about at the start of this article – here it is, in simple terms:
• You save money: a relatively small outlay now, as opposed to hundreds of thousands in Tribunal or Court;
• You save time: a mediation can be scheduled just as soon as the parties agree to participate, whereas other processes might take many weeks, months or years. Meanwhile, the issues fester;
• You save heartache: disputes are tiring, draining and stressful, particularly the longer they go. You live with the dispute all the time. It never goes away. Whereas mediation can get issues on the table, people talking and things resolved so that you walk away with that hopefully, well and truly out of your life.
I’m always happy to hear from our strata stakeholders about what’s happening in the sector, as well as what I can provide. I’ll be, for example, continuing to write articles and information that I think the sector would benefit from. You can reach me at firstname.lastname@example.org or (07) 3193 0500 to discuss.