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Introduction

This article demystifies the navigation of the compulsory conference process in the Victorian Civil and Administrative Tribunal (VCAT). Understanding the process and what to expect at each stage, especially during the compulsory conference, is crucial for all parties involved. 

The compulsory conference provides an opportunity to resolve disputes relatively late in the proceedings. It occurs when earlier attempts to settle have failed, and the matter is close to trial. It provides the parties with a last-ditch attempt to settle before it proceeds to trial. In effect, it gives the parties a final opportunity to retain control of the dispute’s outcome before the tribunal member takes over and issues a win-or-lose decision, with all the attendant risks and consequences.

Early Stage Directions and Orders

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

• Filing of a Points of Claim (if not already filed).
• Filing of a Points of Defence and/or counterclaim.
• Orders for discovery.
• Orders for the provision of expert witnesses and reports.
• Referral of the matter to the compulsory conference.
• If the compulsory conference fails, the matter will generally proceed to trial once all witness statements are completed and the case is ready for trial.

Compulsory Conference Overview

The compulsory conference (CC) is facilitated by a tribunal member, who for the purposes of this piece we will call the convenor, who will lead the session. Parties must prepare position papers of no more than four pages for the conference, which should be straightforward and written in plain English. These papers should summarize the key issues and serve as an aide-mémoire for the convenor and the parties.

The Compulsory Conference Process

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

Unlike mediation, the convenor may often volunteer views on the strengths and weaknesses of the respective cases and give a risk assessment of the likely outcome.

Representation and Expert Witnesses

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

Presentation and Caucuses

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

Role of the Convenor

The convenor acts as an intermediary, counseling parties about risks and uncertainties, and potentially offering insights on the respective merits or lack thereof in the cases. They relay settlement offers and rejections between the parties. 

During private sessions, they may also help reframe the issues at stake to promote a mutually agreeable resolution.

Reaching a Settlement

A successful CC often 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, the VCAT administration is notified, and the matter is formally closed. The typical orders are made that the proceeding is struck out with the right of reinstatement (in case one party breaches the terms of settlement).

Key Principles for Conduct at the Compulsory Conference

• Mutual Respect: Maintaining respect and listening to each other is crucial, even when emotions run high.
• Patience and Persistence: Successful CCs 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.

Finalizing the Settlement Agreement

It is crucial to get the settlement agreement signed by the end of the conference session. Avoid concluding the conference 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 by a lawyer.
• The parties must understand the agreement fully to prevent future disputes.
• Strong advocacy is essential during the conference 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 compulsory conference process, ensuring that your interests are well-represented and that the complexities of construction law are effectively navigated.

Mediation vs. Compulsory Conference: Key Differences

Mediation and the compulsory conference (CC) are both processes used by VCAT to resolve disputes, but they differ in material respects. In mediation, a neutral mediator facilitates discussions without offering any legal advice or opinions on the strengths and weaknesses of each party’s case. The mediator’s role is to encourage open communication and help the parties find a mutually acceptable resolution, without influencing their decisions. The focus is on maintaining confidentiality and creating a space where parties can explore potential agreements based on their own assessments of the situation.

In contrast, the CC is guided by a convenor, namely a tribunal member, who takes a more proactive role. Unlike a mediator, the convenor can provide insights into the likely strengths and weaknesses of each party’s case and offer a risk assessment of potential trial outcomes. This guidance can help parties better understand the risks of not settling before proceeding to trial. 

While the convenor does not make binding decisions, their input can incline parties toward a settlement by highlighting the uncertainties of a trial. The CC typically occurs when mediation has failed or the matter is close to trial, serving as a last opportunity for the parties to reach an agreement before the decision-making shifts to the tribunal.

Conclusion

The compulsory conference is a key component of the VCAT process for resolving domestic building disputes. While it can be a time-consuming process, 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 the conference with confidence.

If the matter does not settle at the CC, the next stop is the trial. Depending on the complexity of the case, a trial can take weeks, sometimes months, to conclude. Trials are expensive and exhausting for both parties, with a winner-takes-all outcome that can include awards of costs for the victorious party, although this is not always guaranteed. 

Importantly, in both the compulsory conference and earlier settlement attempts, parties retain control of the resolution process. Once the matter goes to trial, however, that control is lost, and the decision rests in the hands of the tribunal and as an experienced lawyer will always say – there are no guarantees at trial.

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.

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 a qualified construction lawyer

For related Lovegrove & Cotton articles on building dispute resolution, please see:

How do I resolve my domestic building dispute (in Victoria)?

Domestic Building Dispute Mediations at VCAT: What to Expect