Neighbour disputes
Settling a neighbour dispute outside the legal process
Disputes between neighbours may involve fences and trees, the true position of the boundary, rights of way, other rights over neighbouring land, encroachment, nuisance, damage to land and premises and a proposed purchase or exchange of a piece of land.
Disputes about fences or trees are governed by the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011. This Act encourages neighbours to try to resolve their disputes themselves, and requires this in tree disputes.
If matters are found to be difficult to resolve, mediators offer a quick and easy process to help neighbours to reach a solution acceptable to them both.
If a dispute is referred to court or to QCAT1, it will most likely be referred to mediation or to a compulsory conference, but this is only once the claim is already underway.
So the mediation process offers a convenient and sensible way to try to settle the dispute without recourse to the courts or to QCAT.
Settlement by mediation is a much better way to resolve the dispute than bringing proceedings. It removes the uncertainty and tends to be quicker and cheaper. It will also be more likely to provide a long term solution which is particularly important in disputes between neighbours.
And this process is consistent with parties being encouraged to resolve their disputes before issuing proceedings.
Mediation has a high success rate, and mediators offer a relaxed process with sufficient time to deal with all issues.
In the event that the dispute is not settled, the time and expense of the mediation will not be wasted. This is because the courts will be less likely to refer the case to mediation or to a similar process, if this has already been attempted.
| 1 | Queensland Civil and Administrative Tribunal. |
Neighbour disputes
Mediation ordered by the court
Neighbour disputes in QCAT: Where appropriate QCAT, will organise continued negotiations between the parties, but such disputes can still be settled by mediators outside the tribunal process if the parties prefer.
Neighbour disputes in other courts: Once proceedings are underway the court will be quite likely to refer it to mediation1.
Whilst the court will appoint a mediator, the parties can decide on their own mediator if they wish2.
The parties and their lawyers have a duty to co-operate in this process3.
You don't have to wait for the court to order mediation, you can try it at any stage in the proceedings which seems appropriate.
Mediation has a high success rate, and mediators offer a relaxed process with sufficient time to deal with all issues however complex. It will also be more likely to provide a long term solution which is particularly important in disputes between neighbours.
Settlement by mediation is a far better way to resolve the dispute than proceeding with the claim in court. It removes all the uncertainty and will be a lot quicker and cheaper.
| 1 | Under section 43 Civil Proceedings Act 2011 (Queensland jurisdiction). |
| 2 | This is provided for in Rule 323 of the Uniform Civil Procedure Rules 1999 (Queensland jurisdiction) See also Forms 33 and 34 under the Rules. |
| 3 | Rules 322 and 325 of the Uniform Civil Procedure Rules 1999 and sections 43 and 44 of the Civil Proceedings Act 2011 (Queensland jurisdiction). |
Neighbour disputes
Heading for trial? Settle the dispute now.
If you are heading for trial you can still go to mediation to try to settle the claim even if this has been tried before.
As such disputes progress towards the trial, they are often easier to settle. The risks and costs of proceeding to the trial will be clearer, and the evidence and experts reports will be obtained and their quality will be understood.
Settlement by mediation is a better way to resolve the dispute than battling the claim in court. It removes the uncertainty and tends to be quicker and cheaper. It will also be more likely to provide a long term solution which is particularly important in neighbour disputes.
Mediation has a high success rate, and mediators offer a relaxed process with sufficient time to deal with all issues, whether involving true boundary positions, rights of way and other rights, encroachment, nuisance, damage to land and premises and a proposed purchase or exchange of pieces of land.