Complaints, Dispute Resolution and Contract Mediation
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:
- 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.
- 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).
- 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.
- 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”.
- 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.
- 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.
- 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.
- 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.
- 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).
- 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.
- 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.
- 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:
- 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. - 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).
- 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.
- 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.