Complaints, Dispute Resolution and Contract Mediation
Step 1. Know Your Rights	Step 3. Write a Letter
Step 2. Go to the Source Immeadiately	Step 4. Take it to SPASA

Step 1. Know your Rights

The first and most important step towards successfully resolving a problem is to know and understand what you are entitled to (under a Contract or Agreement), so you know exactly what to ask for.

The most impressive and compelling way to state your case to the other party is to show that:

- you are aware of what the other party is obligated to do for you (under the Contract or Agreement); and
- you know what you're talking about.

Knowing your rights and entitlements under a Contract or Agreement lends a great deal of authority and legitimacy to your complaint and forms a solid foundation for a successful resolution process. Remember, you may be entitled to even more protection than is offered by the other party in a written Agreement or Contract. If you are not sure of your rights consult with your legal adviser.

From the beginning of a problem:

- discipline yourself to keep a written record of events, particularly of when you informed the other party of the problem, who you spoke with and what was said; and
- keep a copy of any documents you send or receive.

Step 2. Go to the Source - Immediately

Once you discover a problem, you’re most likely to get immediate attention and action if you take the matter to the other party as soon as possible, either in person or with a phone call.

Before you do, think ahead! You should be prepared to explain the basic facts of the problem, when it developed and what you believe needs to be done – in accordance with the Contract or Agreement. If the response is not positive, or the person contacted can’t help you:

Step 3. Write a Letter

Address the letter to the Owner, Licensee or Principal of the Business, and clearly state:

- what the product or service is, along with where and when you arranged it
- what the problem is, and when it first occurred
- what you've done so far to resolve the problem (who you have spoken to by phone, or visits, and what was said)
- your understanding of your rights under the Contract or Agreement
- what you believe needs to be done to put the matter right, and
- a time limit for a response, and perhaps an indication of what action you will take if that time limit is not met.

Keep the letter short; to the point and deal only with the facts of the matter (keep a copy for your records).

In your written correspondence, and especially in any face-to-face or phone conversations remain cool and only deal with the facts of the matter. Don't lose your temper or let your frustration get the best of you. Invariably, a resolution is easier to reach if you remain un-emotive, level-headed and matter-of-fact about the issue. If the response is not positive, or the matter is still unresolved:

Step 4. Take it to SPASA

The SPASA Dispute Resolution Process is available “Free of Charge” to those Consumers who have contracted or dealt with a SPASA Member:

- when submitted to it in writing in the prescribed format, together with sufficient supportive evidence (copies of the Contract Schedules, Agreements, Invoices etc and any other relevant correspondence); and

- where it can be clearly seen that a written complaint has already been made to the Member concerned - which remains unresolved.


Notes

- The SPASA Dispute Resolution Process is a “Facilitative Process” involving an independent third party with no advisory or determinative role, providing assistance in managing the process of dispute resolution between the parties, in accordance with the actual terms and onditions of the Contract or Agreement between the parties.

- This process may include Facilitation, Mediation and/or Conciliation, and relies on both parties accepting and remaining committed to the resolution process.

- Contract Mediation provides a means for the parties to agree on how the existing Contract or Agreement can be satisfactorily completed, and can only be invoked while the existing Contract/Agreement is current.

- Workmanship matters can only be dealt with by the Building Services Authority after the Contract is complete, and the Statutory Warranty period has commenced.

- Contract Completion is when the Contractor has issued a “Certificate of Practical Completion” in accordance with the Contract.

- Disputes after completion of the Work (or, provision of the Service) can also be lodged with the Association, for the SPASA Dispute Resolution Process.

- Non-Contractual (or, general) Complaints regarding the Member’s conduct or other Consumer issues should also be lodged with the Association for disciplinary purposes.

- To ensure the interests of both parties are preserved, you will be required to place any moneys outstanding or still owing into the “SPASA Trust a/c”. This confirms your “financial viability” in accordance with the Contract/Agreement, and embargoes the other party from taking action against you for alleged “non-payment” breaches of the Contract/Agreement. It further positively encourages the Contractor/Supplier to actively participate in reaching a solution. Trust funds are held “In-Trust” pending agreement between the parties.


Upon receipt of the completed Consumer Complaint Form:

1) SPASA will provide a Facilitative Complaint Handling Process, which commences with a written Complaint summary (based on the information provided by the Consumer) being sent to the SPASA Member concerned, and allowing a reasonable time (usually 7 days) for a reply to be made to SPASA advising of that Member’s intentions/suggestions to resolve the issue/s specified.

 

2) Where there are any outstanding monies owing (or alleged to be owing) under the Contract/Agreement, then such monies must be placed (at the beginning of the process) into the “SPASA Trust a/c” and held there pending completion of the dispute resolution/mediation process. Any agreements made will include agreement on the distribution of the “Trust Funds”. Trust a/c funds may only be released by the Trustee in accordance with any decisions agreed to in writing by the parties concerned, or as the Mediator may instruct in accordance with Clause 26), below. Should the matter continue to remain unresolved, it may then proceed to a“Facilitation” or a “Mediation” Meeting at a time and place nominated by the Mediator (appointed at the sole discretion of SPASA).

 

3) The SPASA Mediator will endeavour, in the event of a recognised complaint or dispute, to assist both parties to seek and find a solution that is mutually acceptable to them, without the need for costly and traumatic litigation.

 

4) The SPASA Mediator may only assist the parties to achieve their own solution, and to then document such agreements accordingly for them as an agreed Variation to the Contract. A formal “Meeting” may not be required in all circumstances, as most matters can usually be resolved by providing the facilitative communication processes through the SPASA Mediator’s staff (acting as an independent Third Party), and/or by using the services of an “Industry Expert” at a “site meeting”.

 

5) If deemed necessary by the Mediator, an “Industry Expert” will be appointed to conduct a “site inspection” and to provide a “Private & Confidential” report to the SPASA Mediator. In the event that the SPASA Member fails to attend such a “site inspection”, then the SPASA Mediator may still proceed with the matter, using the “Industry Expert’s” report for assistance.

 

6) Where a formal “Meeting” is called, both parties to the Contract or Agreement are then required to attend such a formal Meeting with the SPASA Mediator. Legal representation is not required by the parties.

 

7) Following a “Mediation Meeting” (or, if resolved prior), written confirmations of the agreements reached between the parties (for the proposed course of action to be taken by the parties, the details of any specific work that is required, a time table for such work, and the agreements reached on the distribution of any Trust Funds held), will be confirmed to both parties for their compliance and acceptance as full and final settlement of the dispute. Where any work agreed upon in these agreements is completed within the time specified, as confirmed by the parties involved, then, any funds held in the SPASA Trust a/c may be released by the Mediator in accordance with such agreements.

 

8) SPASA Staff, Industry Experts, and/or Mediators appointed by SPASA do not hold themselves out as Employees, Solicitors, Counsellors, or Consultants to either party, will not make decisions for either of the parties, nor represent either of the parties, and are obliged to remain completely impartial in the processing of any complaint. They should not be asked to, nor should they offer any opinion as to cause, fault or possible solution of any circumstance involved in the complaint.

 

9) In the event that the SPASA process appears to be unable to recognise or resolve a Dispute under a Contract or Agreement, or if the parties appear unwilling or unable to proceed, SPASA may (at its sole discretion) withdraw from the process by giving written notice (to allow the parties involved to pursue the matter by any other lawful means), and may direct the matter to the BSA, the Building Tribunal or the Office of Fair Trading as may be necessary. Any funds held “in trust” in these circumstances will be dispersed by the Trustee at the direction of the Mediator in his sole discretion (including, but not limited to any specific written request of the Depositor’s Solicitor, for transfer of the funds into that solicitor’s trust account).

 

10) The continued handling of this complaint by the Mediator relies on both of the parties agreeing to, and remaining committed to the process, which is designed to help them to identify and clarify the factual matters of concern, the areas of agreement and/or disagreement, and to then review the needs and resources of each party - to develop a mutually agreed solution that meets both their needs.

 

11) Agreement by both of the parties to participate in these dispute resolution procedures (including Mediation) does not prevent either party at any stage from taking any other action against the other party to resolve the matter. However, upon being advised, or becoming aware of any legal or other action being commenced (or being considered) by either party - SPASA will immediately be obliged to withdraw from any further participation. Facilitation is a process by which the parties, with the assistance of a neutral third party (the Facilitator), identify problems to be resolved, tasks to be accomplished or disputed issues to be resolved. Facilitation may conclude there, or another neutral third party (the Mediator), may continue to assist the parties to develop options, consider alternatives and to endeavour to reach an agreement.

 

12) SPASA Staff, Facilitators and Mediators have no advisory or determinative role in the matters disputed, or the outcomes of the process – but may advise on or determine the procedures of this dispute resolution process.

SPASA Recommended Domestic Building Contract – Disputes – Clause 26, states:

1) If either party considers that a dispute has arisen in relation to anything in connection with the Contract, whether during the progress of the work, after
completion of the work, or during the rectification period(s), that party must immediately upon becoming aware of such circumstances, give the other party a written notice setting out the details of the dispute.

2) If the dispute cannot be resolved informally between the parties within 21 Days, the parties must then confer with SPASA (or another mutually agreed third party), whose role will be to assist in the resolution of the dispute through negotiation and mediation (which may include independent expert appraisal of the works).

3) If the dispute cannot be resolved through negotiation or mediation, the Customer or the Contractor must then give written notice to the other parties advising that they intend to resolve the matter through other legal means as appropriate.

4) If a dispute has arisen, the parties must, unless acting in accordance with an express provision of the Contract, continue to perform their obligations under the Contract.