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Mediation provides an opportunity to resolve disputes early on, potentially avoiding lengthy litigation. This guide outlines the key steps and considerations throughout the mediation process.

Early Stage Directions and Orders

At the early stages of a VCAT journey, a member typically presides over the case and issues directions and orders at a directions hearing. Typically, these orders include:

• Filing a Points of Claim (if not already filed).
• Filing a Points of Defence and/or counterclaim.
• Orders for discovery.
• Orders for the provision of expert witnesses.
• Referral of the matter to mediation.

Mediation Overview

The mediation service is free, which is a great virtue of this system and a mediator will be appointed to convene the session. Parties prepare position papers for the mediation, which should be straightforward and written in plain English. These papers should summarize the key issues and serve as an aide-mémoire for the mediator and the parties.

The Mediation Process

When the mediator commences the mediation, they will highlight that all discussions are confidential. While the mediator cannot compel a settlement, they provide an opportunity for the parties to reach an agreement before positions become entrenched and costs escalate.

Representation and Expert Witnesses

Typically, parties are represented by their lawyers and/or barristers at the mediation. Sometimes, expert witnesses are present, either in person or available by phone. Some prefer to have expert witnesses on hand to assist in clarifying technical matters.

Presentation and Caucuses

• The party that initiated the proceedings typically presents their position first.
• The respondent will then be given the opportunity to present their summary.
• The mediator often conducts private caucuses, moving between rooms to facilitate discussions and explore potential areas of agreement. At times, the mediator may reconvene all parties in the same room, but this is at their discretion.

Role of the Mediator

The mediator acts as an intermediary, relaying settlement offers and rejections between the parties. During the private sessions, they may also help reframe the issues at stake to promote a mutually agreeable resolution.

Reaching a Settlement

A successful mediation culminates in a settlement once common ground has been found. If a settlement is achieved, the terms are documented, printed, carefully reviewed, and then signed by both parties. Once the agreement is signed, VCAT officialdom will be notified, and the matter is formally closed.

Key Principles for Mediation

• Patience and Persistence: Successful mediations can take many hours and may extend into the evening. It’s important to persevere, as this is often the most efficient way to resolve disputes.
• Mutual Respect: Maintaining respect and listening to each other is crucial, even when emotions run high.

Sometimes adversaries become emotional, that never helps and mediators invariably cool things down.

Finalizing the Settlement Agreement
It is crucial to get the settlement agreement signed by the end of the mediation session. Avoid concluding the mediation with an unsigned agreement, as momentum may be lost, and there is a risk of parties retracting from previously agreed terms.

Crafting the Agreement

• Ensure the terms of the settlement are clearly drafted preferably by a lawyer.
• The parties must understand the agreement fully to prevent future disputes.
• Strong advocacy is essential during mediation to ensure that parties do not agree to unfavourable terms.

Engage Seasoned Construction Lawyers

To maximize the chances of a favourable outcome, it is advisable to engage seasoned construction lawyers. Their expertise in building disputes can provide critical guidance throughout the mediation process, ensuring that your interests are well-represented and that the complexities of construction law are effectively navigated.

Conclusion

Mediation is a key component of the VCAT process for resolving domestic building disputes. While it can be a time-consuming process, it has much to commend it as it results in a more efficient and cost-effective resolution than proceeding to a full hearing. By understanding what to expect, preparing thoroughly, and engaging experienced legal support, parties can approach mediation with a greater expectation of settlement.

Disclaimer:

The information provided in this article is for general informational purposes only. It does not constitute legal advice. For specific legal advice related to building regulations and compliance, please consult an experienced construction lawyer.

About Lovegrove & Cotton Construction and Planning Lawyers

Lovegrove & Cotton Construction and Planning Lawyers has been representing builders, contractors, and homeowners in the Victorian Civil and Administrative Tribunal (VCAT) since 1995. The firm has handled hundreds of cases over the years, demonstrating extensive experience in building and construction law. If you require legal representation in this domain, please send an email to enquiries@lclawyers.com.au, attention: Practice Manager, Ziggy Lovegrove.