Mediation – Domestic Building Dispute Resolution and the VCAT

Mediation – Domestic Building Dispute Resolution and the VCAT

18 Nov 2021

By Lovegrove & Cotton – Construction and Planning Lawyers

Once legal proceedings have been issued in the VCAT for a domestic building dispute, in the overwhelming majority of cases, the tribunal will order that the dispute be referred to mediation.

The tribunal, at no costs to the parties, appoints a mediator. Typically, construction lawyers and or barristers appear at the mediation on behalf of the parties.

Before the mediation takes place, the VCAT will normally 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.

The mediation will ordinarily be set down for a day. The mediator will give each party, through its lawyers, the opportunity to present a summary of their cases.

After the mediator has heard the summary and the position paper oration, separate and private caucuses are arranged with the advocates and their clients.

Often, expert witnesses attend the mediation.

Mediators typically communicate settlement offers and rejections from the parties as they try to move towards an accord.

Successful negotiations, in the writers’ experiences, take the better part of a day, as it can take quite a while to move traditionally intransigent positions.

A successful mediation 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 mediation fails, there is a high chance that the dispute will ultimately proceed to a full-blown (often lengthy, and always costly) hearing, unless it is resolved at a compulsory conference.

 

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.