Compulsory Conferences – Domestic Building Dispute Resolution and the VCAT
By Lovegrove & Cotton – Construction and Planning Lawyers
A ‘compulsory conference’ is an effective dispute resolution mechanism for the resolution of domestic building disputes in the VCAT.
A compulsory conference is typically ordered by a tribunal member where other attempts to settle the dispute have failed. By this is meant the mediation that typically would have been ordered at an earlier juncture will not have delivered a resolution to that which is in dispute.
Furthermore, the compulsory conference gives the parties a last-ditch opportunity to settle the dispute before it goes to trial or formal hearing.
One of the writers can attest to the fact that compulsory conferences often settle traditionally intractable positions.
The tribunal, at no costs to the parties, appoints a tribunal member to preside over the dispute. This is a key distinction with mediation, where a ‘mediator’ is appointed by VCAT, who may be a tribunal member or accredited mediator. Typically, construction lawyers and or barristers appear at the compulsory conference on behalf of the parties.
Before the compulsory conference takes place, the VCAT will often make an order that each party must prepare and exchange a position paper.
The position paper will provide a synopsis of that which is in dispute and will have a request for the type of relief the party has in mind.
The position paper is normally prepared by a construction lawyer and will form the basis of the advocacy submissions on the day.
A key difference between a compulsory conference and a mediation is that the tribunal member will often give an indication as regards how the case, were it to proceed to trial, would play out. This may include the proffering of suggestions to the parties regarding the respective strengths and weaknesses of the positions proffered by their advocates.
This inkling can serve as a very good dispute resolution catalyst. A mediator, strictly speaking, is not permitted to provide such inkling; whereas, because the compulsory conference convenor will always be a tribunal member, the fact that they would have heard many trials that have proceeded to conclusion affords them a high level of jurisprudential gravitas.
The compulsory conference will ordinarily be set down for a day. The convenor will give each party, through its lawyers, the opportunity to present a summary of their cases.
After the convenor has heard the summary and the position paper oration, private caucuses are often organised separate with the advocates and their clients.
Sometimes it is useful for expert witnesses to attend the mediation.
If the parties, after completing their submissions, and preliminary interactions with the convenor, consider there is merit in moving towards a negotiated outcome, the convenor frequently has separate confidential dialogues with the adversaries in an endeavour to facilitate a convergent position.
Successful compulsory conferences in the writers’ experience take the better part of a day, as it can take quite a while to move traditionally intransigent positions.
A successful compulsory conference requires the cooperation of all the parties, a willingness to move and compromise where necessary, and a mutual desire to put the dispute behind one in order to move on.
If the settlement is successful, the terms of settlement will be written up and signed. Terms of settlement must be prepared with the greatest of care, and all matters that are germane to the dispute must be resolved, committed to writing, and ‘ticked off’ as it were.
If the compulsory conference fails, there is a high chance that the dispute will ultimately proceed to a full-blown (often lengthy, and always costly) hearing.
Lovegrove & Cotton: Experts in Residential Building Dispute Resolution
As construction law is a complex area, a potential disputant is well advised to engage a well experienced construction lawyer to have conduct of the dispute resolution process. Lovegrove & Cotton have practised in this area for 30 years. One of our lawyers co-authored ‘the Users Guide to the Domestic Building Contracts Act’, Lovegrove on Building Control. The principal of Lovegrove and Cotton, Justin Cotton has 20 years of experience in the resolution of building disputes and this of course includes a wealth of experience at the VCAT.
This piece is prepared by Lovegrove & Cotton, including Jordan Davies, Senior Paralegal.