Chapter 2: Disputes and how to resolve them

If you have a problem with your neighbour, or your neighbour has a problem with you, it is important to try to resolve it as early as possible. Once a problem escalates, it can result in entrenched conflict that becomes disabling for all concerned and very difficult to resolve.

The best first step is always communication. If you can, talk to your neighbour. Discuss the practical aspects of the problem, how it is affecting you both and what needs to be done to solve it. Be sure to treat your neighbour with courtesy and respect and listen to what they have to say. Keep a record of all contact you have regarding the problem.

Work out, concretely, what you need for the problem to go away. The solution may be smaller or simpler than you think, and sometimes minor adjustments can have a major impact on improving the situation.

Where you come to some agreement with your neighbour, it may be appropriate to make an action checklist together or put the agreement in writing so that each of you understands what is expected of the other and by what date it is expected. Make sure each of you has a copy and if you run into difficulties with what you have committed to, let your neighbour know. Always keep the communication channels open.

Know your legal position. Whether you intend to take legal action or not, knowing what the law is can better equip you to realistically assess your options, negotiate more effectively for a good outcome and make sound decisions about the next steps to take. As well, some problems are soon solved once the parties know where they stand and what the law expects of them.

Investigate your options for what best suits your particular situation. There may be a range of remedies available, both legal and non-legal and it is always a good idea to have a ‘Plan B’.

Be prepared to compromise. Whether a problem is solved through talking or through legal action, the end result often involves compromise. So it can be to your advantage if you consider the issues carefully at the outset and work out which bits you can live with ... and which bits you can’t.

If contact with your neighbour becomes violent or threatening, call the police.

Mediation

Mediation is an excellent alternative to legal action for many types of dispute and is well-suited to neighbour disputes. It is especially useful where you are finding it difficult to talk directly to your neighbour or have been slow to make progress, where conflict has become entrenched or the problem is escalating.

Mediation gives you the opportunity to meet with your neighbour on neutral ground and discuss the matter in the presence of a trained mediator to work out a solution together that suits both your needs. An agreement reached through mediation is not a court order, although in some instances it can be made into one if the parties wish.

Mediation is recognised by our legal system as a valid and effective means of resolving a dispute and is now often used by the courts during all stages of the litigation process.

Legal action

Using the legal system offers certain advantages but also involves significant risks. It is often preferable to try to resolve your dispute by other means.

The advantages of taking legal action are:

• it gives an impartial decision maker the responsibility for solving a problem that you have been unable to solve
• it gives the chance to have your grievance heard publicly and decided according to the law
• it offers a way to contain and end the dispute in a systematic and orderly way
• the outcome has the full force and authority of the law.

The disadvantages are:

• the dispute will be decided not by applying principles of fairness and justice, but by applying the law
• you cannot control the outcome, and you might not like it
• there can be considerable stress, expense and delay involved
• conflict and hostility may escalate during legal proceedings
• you usually can’t choose which court or tribunal will hear your matter as it will depend on the type of dispute, the particular law involved, the remedy you are seeking and/or the amount of money involved
• some courts and tribunals are user friendly and more suitable for representing yourself but others, such as the NSW Supreme Court, have complex procedures and your matter may require an experienced lawyer
• In many courts and tribunals there is the risk of costs being awarded against you. This means if you lose the case you may be ordered to pay the other party’s legal costs and these can be substantial. Some courts and tribunals are ‘no costs’ jurisdictions, where each party is expected to bear their own legal costs. It is important to check this with the relevant court or tribunal before you decide whether to take legal action.
• Although legal advice may be available through Legal Aid, actual legal representation for your case at court or at a tribunal is strictly limited for neighbour disputes and is generally not available. Contact LawAccess NSW for more information.
• When you take legal action, if you do not like the result, an appeal is not always available, and if available, it may be only on limited grounds.

If your matter gets to court, the court will want to know what attempts have been made to resolve the dispute and may order or refer you to mediation before agreeing to a hearing.