How to resolve your domestic builder dispute…
Building a home can be a long and complicated process. Even though all parties usually go into things with the best intentions, it doesn’t always go smoothly.
So, what happens when a home owner and builder find themselves in a dispute which they can’t resolve? Have you heard of “alternative dispute resolution” and “VCAT” – do you know what the differences are and the different steps?
Understanding the steps & the jargon
- What does it mean to “meet in good faith”?
Before a party issues legal proceedings they must show a genuine attempt to resolve a dispute. This involves the parties meeting and discussing the issues and attempting to reach a resolution or a compromised solution.
- What is a conciliation? https://www.dbdrv.vic.gov.au/
In Victoria, before a party may issue legal proceedings in the Victorian Civil & Administrative Tribunal (VCAT), parties must apply online to the Domestic Building Dispute Resolution Victoria (DBDRV). The DBDRV offers free conciliator services to assist Victorian home owners and builders/contractors resolve “domestic building work disputes”. The conciliation is run by conciliators who assist the parties discuss the issues to attempt to resolve the dispute.
- What is a mediation? The Dispute Settlement of Victoria (DSV) offer free mediation services which are conducted by a trained and accredited mediator. The parties must have a genuine interest to resolve the dispute and the mediator is impartial and confidential. https://www.disputes.vic.gov.au/about-us/mediation. It is common for a matter referred to VCAT to be referred to either a “mediation” or a “compulsory conference” – but do you know the difference?
A “compulsory conference” (as defined in s83 of the VCAT Act) is somewhat more formal than a mediation and is facilitated by a member or principal registrar of VCAT. Like a mediation the compulsory conference aims to clarify the issues in dispute and attempts to reach a settlement between the parties.
If a settlement cannot be reached VCAT may give directions as to how proceedings will be conducted from that point onwards.
All discussions during either the conciliation, mediation or compulsory conference are held in private and cannot be used at a later hearing. If a settlement is reached, the parties can enter into a Terms of Settlement or Deed of Settlement, to record the agreement and if the matter is before VCAT, orders may be made to strike out the proceedings with a right of reinstatement if the parties do not abide by the terms of the agreement.
Regardless whether you are preparing for a conciliation, mediation or compulsory conference it is really important to be prepared.
Being prepared before you arrive is critical to resolving any dispute.
What does this actually mean? It means doing your homework before you arrive. It is also important to consider what the other side might argue to ensure you have answers to address what they may (or may not) say so you are prepared.
Your preparation guide:
- Contract Document
- What do the general conditions or special conditions say about your rights under the contract?
- Are the documentations (plans, specifications, marketing material) in line with those rights under the contract or are there ambiguities that you need to resolve?
- Are the terms unfair?
- Are all the documents signed correctly?
- Were the contract documents explained clearly?
- Did the Owner have independent advice or time to review the contract terms adequately?
- Defective Works
- Is the project built in accordance with the contract, plans and specification?
- What does the legislation, Code or case law require?
- Is the work or document compliant with these requirements?
- Are there external works which may have affected the builder/contractor’s works?
- Do you have insurance to cover the issue?
- Do you have witnesses who were in attendance at the meeting or onsite?
- Are there any before and after photographs/videos that can address the issue?
- Are your witnesses prepared to give a witness statement or attend the conciliation?
- Independent Experts
- Do you have independent experts who can provide evidence on compliance?
- What are industry practises?
- Do you have sufficient proof (as per above) to support that the works are compliant or if not, that any non-compliant issues are not a consequence of your works
- Do they have a legitimate reason for non-payment or delaying the payment?
- Have you responded to all their concerns in writing?
Being prepared means you’ll get the most of the dispute resolution process. No process is perfect, but if you are not prepared then you are not really giving the process a fair chance.
During the conciliation, don’t feel that the conciliator is ‘forcing’ you to settle, but rather the conciliator may be considering different resolution options for the parties (to avoid litigation). Try to think outside the box when you are in a conciliation. What compromises can each party make to avoid further legal costs and proceedings.
Need help preparing?
At Spectrum Lawyers & Consultants we can assist you have your best foot forward to be prepared before your walk in the door of your dispute resolution process and we can attend with you on the day to assist you consider all resolution options and protect your rights.
Chat to us to find out more.