Mediation of residential building disputes

Mediation is a process where people come together to talk about their dispute and try to reach an agreement that everyone can live with.

Mediation services can be arranged by the Director of Building Control, part of Consumer Building and Occupational Services – CBOS (within the Department of Justice).

Before seeking to have a dispute mediated through the Director, you should have already tried to take reasonable steps to resolve your issue.

Types of building disputes that mediation can help to resolve

Defective or incomplete building work
Work that does not comply with the approved plans
Delays in completion of work
Variations of work
Issues with payment (including deposits and progress payment schedule)
Issues about the residential building contract including its terms and obligations
Correction of minor defects and omissions
Breaches of implied warranties given by the building contractor.

The Director can only arrange mediation of disputes that relate to building work that is less than 6 years old. This period starts from the date of the practical completion of the residential building work.

If there is no practical completion for the residential building work, within 6 years after the day on which the residential building work was performed by, or on behalf of, the building contractor.

Who can seek mediation?

For a residential building work dispute, the main parties will be the owner of the land where building work is taking place, and the building contractor (usually the licensed builder, but can include a plumber or other head contractor). Other persons, including designers, building surveyors or tradespersons may be relevant to a particular dispute.

It is best if all the people who are involved in the dispute and the making of decisions attend the mediation. If this is not possible, it may be possible to send a representative, although this is not recommended. It is important that any representative is familiar with the dispute and has authority to make decisions on behalf of the others on the spot.

The applicant for mediation must notify the respondent of their lodgement of a Notice of Dispute with the Director by sending a copy to them.

If the Director accepts the notice of dispute, they may join other affected parties to the mediation, and then give details of proposed mediation sessions to the parties.

Attending mediation is voluntary.

Starting the mediation process

For a dispute or claim under the Residential Building Work Contracts and Dispute Resolution Act 2016:

Complete and lodge a notice of dispute with the Director of Building Control (this form is available from the CBOS website). This is the application for mediation services and the applicant must provide details about the dispute and the other parties to the building work contract.
A notice of dispute –

(a) is to specify the grounds of the dispute; and

(b) must be in the form approved by the Director; and

The notice therefore requires that these details be provided:

Names of applicant and respondent or other parties
Contact details of those parties
Contractor’s licence number (if known)
Status of the applicant (contractor, or owner)
Information about the property
Description of the works (building or plumbing, new build or renovations)
Copy of the written contract, including specifications (if available)
Relevant dates (e.g., when work was performed, the date of practical completion etc.)
Concise description of the dispute or the grounds of the dispute
Evidence that there is an unresolved dispute (documents such as emails between parties showing attempts to negotiate)
Application to the Director of Building Control for mediation
Particulars regarding the lodgement of the notice with the Director
Acknowledgement that there is a notification to the respondent (meaning that the applicant must immediately provide a copy of this notice to the other party – the respondent).

Mediation session costs

There are no application fees for applying for mediation.
The parties to mediation pay the costs of the mediation sessions directly to the mediator(s) who were appointed by the Director to facilitate mediation sessions.
It is usual that the costs are shared equally between the parties.

Why the Director cannot always provide mediation

The most common reason the Director cannot arrange mediation is that the other party does not want to attend, or does not make contact with our services.

It is a voluntary service, and the Director cannot make people attend mediation.

However, mediation may not be offered for a situation where the Director, or the appointed mediator panel, may determine that a matter is unsuitable for mediation, even though parties have agreed to attend.

A party’s communication style, ability to listen and to talk respectfully can be an indication of how the party might communicate in their mediation.

Other examples of what can contribute to making mediation unsuitable include, but are not limited to:

One or more parties is unwilling to resolve the dispute or are unwilling to negotiate.
The parties cannot agree on a date, time, location and/or attendees for the mediation.
Where a party might have limited capacity to make decisions for themselves.
History of how one or both parties have previously engaged with the Director, mediators or CBOS staff.
Parties’ attitudes towards each other.
Health, welfare and wellbeing of a party.
A lack of good faith towards the process and spirit of mediation.
A history of violence between the parties (including domestic and family violence).
Fear of the other party, or fear of retribution by a party.
Existing criminal charges, court orders, bail conditions or court undertakings that prevent mediation.

Mediation outcomes

Everyone hopes to reach an agreement at the end of a mediation session.

Even if an agreement is not reached, you will have been able to clarify the issues in dispute and talk about your concerns. There are a number of possible outcomes to mediation with the Director for a residential building dispute:

Agreement is reached

If you come to an agreement, the mediators will help you write it out in a Terms of Mediated Settlement document.

Once the agreement is written down and everyone is satisfied with the wording, each person involved will be asked to sign it.
Terms of a settlement will usually provide for payment of a settlement sum, and the date by which it is to be paid.
Every party will get a copy of the Terms of Mediated Settlement agreement, and a copy is also kept by the Director.

Agreements reached are usually confidential.

However, if a document (such as a Terms of Mediated Settlement) was prepared to give effect to a decision taken, or an undertaking given, or a settlement, in relation to the mediation, then the mediation proceedings and that document may be taken into account by a tribunal or court that has been asked to enforce or apply the agreed settlement.

Enforcement of a Settlement

In general, People tend to keep agreements a written agreement made at mediation because:

In most cases, people keep their word.
They have invested time and effort in the mediation.
They are keen to avoid further expense from the dispute.
It makes sense not to test a fragile relationship.

However, in certain circumstances the Tasmanian Civil and Administrative Tribunal (TASCAT) may declare that a settlement, made under the mediation provisions in Part 9 of the Act, is binding and enforceable.

When people involved in mediation can't agree

If an agreement is not reached after a mediation session, but everyone agrees further mediation may help, another session can be arranged. However, if the parties to a residential building dispute cannot reach a settlement agreement within 20 days of the appointment of the mediation panel, then the mediators must cease mediation activities and inform the Director of that outcome.

When the people involved in mediation can't agree and mediation ceases

Even where mediation does not result in an agreement, it can still be very useful. You have had the opportunity to communicate with each other about your concerns, including clarifying the issues, explaining each other's point of view and outlining what each of you would like to happen.

Parties may still reach an agreement shortly after the session as a result of their new understanding.

Related information

Last updated: 07 Jan 2025

This page has been produced and published by the Consumer Building and Occupational Services Division of the Department of Justice. Although every care has been taken in production, no responsibility is accepted for the accuracy, completeness, or relevance to the user's purpose of the information. Those using it for whatever purpose are advised to verify it with the relevant government department, local government body or other source and to obtain any appropriate professional advice. The Crown, its officers, employees and agents do not accept liability however arising, including liability for negligence, for any loss resulting from the use of or reliance upon the information and/or reliance on its availability at any time.