Early Resolution Process Manual March 2019.pdf

Process manual:
Early Resolution team

Date
March 2019
Author Early Resolution Team

Contents
Enquiries .............................................................................. 3
New complaint enquiries ......................................................................................3
Referring complaint enquiries back to the agency (FR2A) ...........................................3
Reports from Licensees under Rule 7.1/7.2 ..............................................................4
Complaints ........................................................................... 5
Receiving new complaints ....................................................................................5
Section 74(3) assessment ....................................................................................6
Section 74(3)(c) – referral to another agency ..........................................................6
If the complaint does not fall under section 74(3)(a), (b), (c)......................................7
Complaint allocation ............................................................................................7
Facilitator starts work on complaint ........................................................................8
Facilitator’s Initial Call with Complainant .................................................................9
Clarify issues with a senior facilitator/team leader ................................................... 10
Facilitator calls the eligible officer (likely CAC outcome) ........................................... 10
Facilitator calls the eligible officer (likely ER outcome) ............................................. 10
Triage ............................................................................................................ 11
Triage outcome: CAC ............................................................ 13
Notify all parties ............................................................................................... 13
Confirm the key concerns ................................................................................... 14
Initial referral report ......................................................................................... 14
Complaint documents/appendices ........................................................................ 14
Triage outcome: Early Resolution ............................................ 15
Facilitation (shuttle negotiation or teleconference) .................................................. 15
Mediation ........................................................................................................ 16
Complaint resolved through early resolution .......................................................... 18
Complaint not resolved by early resolution ............................................................ 19
Early Resolution decision tree/process map .............................. 21
Triage criteria ...................................................................... 22
Early Resolution ............................................................................................... 22
CAC ............................................................................................................... 22
Section 74(3) criteria ............................................................ 23

Page 2 of 28

Enquiries
New complaint enquiries
Complainants are encouraged to call the REA and discuss their concerns before submitting a
written complaint. Some choose to email an enquiry to [REA request email]. An enquiry will be
considered a 'complaint enquiry' (i.e. a potential complaint) and allocated to a facilitator if:
•  the caller/enquirer raises concerns about a licensee's behaviour that cannot be
addressed with simple information (e.g. information about the multi-offer process);
and
•  in the case of emails, if it is clear the enquirer has not yet spoken to us, and has not
completed a complaint form nor provided supporting documents with their email. It is
important consumers understand our role and what our process is before choosing to
lodge a complaint.
If the complaint enquiry comes through the 0800 line, the general enquiries team will
forward it to the Early Resolution queue in Shoretel. The facilitators rostered on the queue
that day will take the calls and:
•  Listen to the complainant's story
•  Clarify the key issues and concerns
•  Provide information about licensee obligations under the Act/Rules
•  Discuss possible options for resolving the complaint:
o  Whether the caller wishes to use the agency's in-house complaint process
(FLIC outcome: Complaint - ref agency)
o  Whether the caller would like the facilitator to pass on the complaint and
contact details to the agency manager (FLIC outcome: Complaint - FR2A)
o  Making a formal complaint to the REA - and what the REA complaint process
looks like and possible outcomes (FLIC outcome: Complaint)
•  If there are any current delays in looking into complaints, please explain this

FLIC
•  Create a new enquiry
•  Upload file note of conversation with the caller and add a Note of your call and any
follow up calls to the agency, or any actions
•  Upload any emails to the Documents tab
•  Choose the appropriate outcome in the "Response" field
•  Close the case
Referring complaint enquiries back to the agency (FR2A)
When taking a complaint enquiry call, you may decide to help the complainant get their
complaint to the agency where:
•  The complainant has already contacted the agency and either received no response
or is not satisfied with the response; or
•  The complainant is unwilling to contact the agency directly; or

Page 3 of 28

•  The complainant asks for help communicating with the agency; or
•  The complainant appears to need support to communicate their complaint to the
agency; or
•  The issue appears to be an urgent one (e.g. an impending auction)

If you decide to refer the complaint to the agency yourself, you should:
1.  Explain the next steps to the complainant. Get their contact details and permission to
pass these on to the agency
2.  Make it clear you are not currently looking into their concerns and you will not be in
touch again. They may expect to hear from the agency next. If their concerns are
not resolved they are welcome to contact you again to discuss the next steps in the
complaint process
3.  Call the EO and pass on the complaint details, including:
•  What the complaint is about
•  The impact on the complainant
•  What would resolve the matter for the complainant
•  The complainant’s contact details
4.  Make it clear to the EO you are simply passing on the complaint and leaving the
issues with the EO to address; you do not expect to hear back from the agency
5.  In some cases you may feel it appropriate to follow up with a written complaint
summary for the EO and/or complainant
6.  If the agency does not wish to contact the complainant directly, contact the
complainant to explain this and discuss the option of making a complaint to the REA
Reports from Licensees under Rule 7.1/7.2
Under Rule 7.1 licensees may report other licensees to the REA for potential unsatisfactory
conduct. Under Rule 7.2 licensees must report other licensees where they suspect
misconduct.
Please see the REA process for dealing with, and logging, reports from licensees.

Page 4 of 28

Complaints
Receiving new complaints
Regulation 4 of the Real Estate Agents (Complaints and Discipline) Regulations 2009
requires a complaint to be in writing and to include:
•  The complainant’s name and contact details
•  The licensee the complaint is about
•  Details of what the complaint is about
•  State the steps (if any) taken to resolve the complaint
•  Be supported by any appropriate documentation held by, or available to, the
complainant
Facilitators can help complainants complete a complaint form if necessary, or provide other
assistance for people wanting to make a complaint (e.g. translation assistance.)
The team coordinator will read and log all new complaints. The Date Complaint Opened in
FLIC must be the date of the business day the complaint arrived at REA, if the complaint
arrived before 4pm on that day. If the complaint arrived after 4pm then it will be dated the
following business day.
The coordinator:
a.  Checks the New Complaints inbox regularly, four times a day. The mail is delivered
every morning and any complaints received in the post will be put on the
coordinator’s desk.
b.  Reads the complaint and related documentation. If there are any issues that need to
be addresses urgently, the coordinator will raise this with the ER team leader. An
example is the non-disclosure of information that relates to a current listing.
c.  Enters the complaint in FLIC.
d.  Some complainants may wish to remain anonymous and may not provide their
details; in this case the complainant is listed as ‘Anonymous’ in the case title and the
REA becomes the “complainant”.
e.  Completes the triage form.
f.  Completes the initial assessment cover sheet by writing the case number, case title,
date (in the top right corner) and the name of the facilitator who took the initial
enquiry. The co-ordinator then gives the cover sheet to the team leader

FLIC
•  Search the cases on FLIC to see if the complainant has contacted us before
about this issue.
•  Create a new case if they haven’t contacted us before or change the enquiry to
a complaint
•  Create the complainant, if they do not already exist in FLIC
•  Connect the complainant(s), respondent(s), lawyer (if applicable), property
•  Save the triage form, complaint and any email correspondence in the
documents tab
•  Case manager stays in the coordinators name until the case is allocated to a

Page 5 of 28

facilitator
Section 74(3) assessment
This assessment applies to all complaints received after 14 November 2018.
Section 74(3) says:
(3) The Registrar may determine that—
(a) the complaint discloses only an inconsequential matter, and for that reason
need not be pursued:
(b) the complaint is frivolous or vexatious and not made in good faith, and for
that reason need not be pursued:
(c) the complaint should be referred to another agency, and refer it accordingly:
(d) the complaint has been resolved to the complainant’s satisfaction and no
further action is needed.
If the complaint cannot be dealt with under section 74(3) it must be referred to a Complaints
Assessment Committee (s 74(2)).
For guidance on what these terms mean, see the Table at page 22.
The Early Resolution Team Leader has delegated authority from the Registrar to consider
whether the complaint might fall under section 74(3) of the Act.
1.  The Team Leader must consider all complaints received by the REA, and whether
they may fall under section 74(3) of the Act.
2.  Complaints that appear to fit the criteria under section 74(3)(a), (b), or (c) may still
be allocated to a facilitator to have an initial discussion with the complainant to
ensure we understand the complaint correctly.
3.  If the Team Leader considers the complaint meets the criteria, the complaint must be
referred to the Registrar to make a decision under section 74(3).
4.  Where the Registrar agrees the complaint fits the criteria for a decision under section
74(3)(a), (b), or (c) the facilitator and Team Leader will draft a decision letter for the
Registrar to review. The Registrar signs and sends any decisions made under these
three sections to the complainant.
5.  The facilitator or the Registrar will send a copy of the Registrar’s decision to the
licensee(s) the complaint was made against.
6.  The Registrar’s decision will refer the complainant to the Office of the Ombudsman if
the complainant is dissatisfied with the decision.
Section 74(3)(c) – referral to another agency
Where the Registrar makes a decision to refer the complaint to another agency, the
facilitator will contact the other agency (if necessary) to confirm the correct email address to
send the complaint to.

FLIC

Page 6 of 28

All s74(3) considerations must be recorded in FLIC in the Triage stage. The decision type
is “s74(3) consideration”
If the complaint does not fall under section 74(3)(a), (b), (c)
The team leader sends an email acknowledgment to the complainant, requesting further
documents if necessary. Where there is a backlog of complaints the team leader assesses
whether the complaint is likely to meet the criteria for referral to CAC, and if so, puts the
complaint in the queue for priority allocation.
When additional information is received, the coordinator attaches it to the case.
Date complaint opened & Date complaint closed
There are two fields in FLIC we use to report our complaint timeframes: Date Complaint
Opened and Date Complaint Closed.
Date Complaint Opened
•  Is the date the complaint met the definition of a ‘complaint’ under Regulation 4 (see
Receiving New Complaints above)
•  May be changed to the date the complainant insisted the complaint be referred to
CAC if:
o  The complainant had been through the early resolution process and the
complaint was closed; and
o  The complainant has insisted on the CAC referral more than 20 working days
after the complaint was closed.
•  May be changed where the complainant has agreed to put their complaint on hold for
a period of time (usually, for example, where the complainant lodges their complaint
and then goes overseas.)
Date Complaint Closed
•  Is the date the settlement agreement was reached between the parties OR the date
the Consumer Information or Compliance Advice letter was issued (Early Resolution
process)
•  Is the date the NFA decision, or the penalty decision (for UC), or Tribunal decision
following misconduct charges is released (CAC process)
•  Is the date the Registrar releases a decision to the parties under sections 74(3)(a),
(b), or (c) of the Act (this does not include s74(3)(d) decisions, which are covered by
the first bullet point instead).
Complaint allocation
Complaints are allocated by the team leader or coordinator based on the daily report. The
average case load for a facilitator is three to five complaints, depending on experience and
capacity. The team co-ordinator will print the complaint and allocate the case in FLIC.

FLIC

Page 7 of 28

•  Add note to the case - “case allocated to…” and DATE
•  Select the Case Manager and the Facilitator

Facilitator starts work on complaint
•  Contact complainant within five days to either discuss complaint or set up time to
discuss complaint
•  Read and understand the complaint
•  Conduct research if applicable, e.g. search the property on Property Guru
•  Prioritise complaint as appropriate. Cases that appear to meet criteria for referral to
CAC may need prioritising to meet our 20 day timeframe, and prevent delays to
overall complaint stats
•  Risk assessment:
o  Check if there is a conflict of interest between the facilitator and the
complainant or respondent (return to coordinator for reallocation if there is a
conflict)
o  Is there media interest in this case?
o  Is language line required?
o  Are there any cultural aspects that may need consideration?
o  Is the complaint about a board member or CAC member? If so, notify the CE
and Head of Regulatory Services
•  You may wish to start completing the triage form, this is saved in the Document tab
of the case in FLIC.

FLIC
•  Complete the date in the First Contact (complainant) field
•  Add a note of any work done on the case (including discussions with team
leader)
•  Save email correspondence or research in the document tab of the case

Page 8 of 28

Facilitator’s Initial Call with Complainant
You then call the complainant to make sure you’ve understood their complaint, and they
understand our process. This section gives guidance on how to structure that phone call.
Reason for call
Explain the purpose of your call and how long the call is likely to take. Explain who you are
and what the role of a facilitator in the Early Resolution team is.
Understanding the complaint
Ask the caller to tell you about the complaint. Summarise and reflect back what you have
heard so the caller feels you are listening to them and understanding their complaint.
•  Acknowledge emotions – “I can hear this has been very frustrating for you”, “It
sounds like the licensee made you angry when she said…”
•  Reflect back to the complainant in a neutral way – “So you said the licensee…”,
“What I heard you say about the tree was….”
•  Identify the issues in the complaint and the underlying interests of the complainant
•  Ask open questions to get more information from the complainant (e.g.
What/How/Why)
•  Clarify any points or the timeline of events that you are not sure about
•  Understand the impact of what has happened on the complainant
•  What would reasonably resolve the complaint for them?
Explaining the REAA process
•  Explain we assess the complaints when they come in and decide what the best
approach for each complaint will be. Explain the ER and CAC processes.
•  Explain where you think their complaint may sit in our process. If at this stage it
looks likely to fit the triage criteria for early resolution, talk to the complainant about
what resolution method would suit them best.
Reality testing
•  Manage the caller’s expectations about the process and the likely outcomes
•  If there are no disciplinary concerns, be upfront about this. Explain if we go through
the early resolution process and the parties are not able to resolve the complaint,
we're unlikely to be able to help further.
What next?
Give the complainant a time-frame for when you will contact them and make sure they
understand the next steps.

After the call to the complainant, make a file note of your conversation and add any
additional information to the triage form. Ensure you write in your file note if you have
explained the complaint process, and note that you have explained the complainant's right
to the CAC process.

Page 9 of 28

FLIC
•  Complete the date in the First Contact (complainant) field with the date you
first contacted the complainant (this includes voicemail messages and
emails)
•  Save the file note to the document tab of the case
•  Add a note to the case

Clarify issues with a senior facilitator/team leader
Make time with a senior facilitator or team leader to discuss the complaint and the issues
that you have clarified. This is to help your thinking about the likely triage outcome, so you
can test the licensee’s interest in resolving the complaint (if that’s the triage outcome) and
start planning your likely resolution approach.
If, from the information you have so far, the complaint looks like it might meet the triage
criteria for referral to CAC, apply the following criteria to see whether the (Further
Information Gathering) FIG process should be followed:
•  Based on the information on the complaint form alone, the disciplinary issues appear
to meet the triage criteria for referral to CAC; and
•  The facts can be evidenced by production of a document by the licensee, agency or
others, or by verbal confirmation from the vendor or purchaser.
Facilitator calls the eligible officer (likely CAC outcome)
If the complaint is likely to be referred to a CAC, call the eligible officer (EO) and:
•  Explain the complaint details
•  Explain the key issue(s) and why we are considering referring the complaint to a CAC
If applicable, explain the FIG process and what documents we're looking for to help with our
triage decision. Make it clear we will share ALL information received with the complainant.
Follow up your conversation with the template FIG email (Appendix 1.) The timeframe for
providing documents is 3 working days. Facilitators have the discretion to increase this to 5
working days.
Once you have received the documents, triage the complaint. Do the documents address the
key issue(s)?
Facilitator calls the eligible officer (likely ER outcome)
Where practical, make a time to discuss the complaint with the EO and licensee together. If
it is not practical, discuss the complaint with the EO only, but explain the licensee
respondent is welcome to be involved in the process.
Reason for call
•  Explain who you are and what the role of a facilitator in the Early Resolution team is.
Explain the REA has received a complaint about X and Y and we are talking to the
parties to decide the best approach to the complaint.
•  Briefly outline the two process options (ER and CAC) and that at this stage we're
looking at whether the complaint might be resolved between the parties.

Page 10 of 28

Understanding the respondent’s perspective
•  Explain the complainant’s concerns, the key issues, and the impact on the
complainant
•  Ask the respondent to tell you their perspective on what’s happened. Summarise and
reflect back what you have heard, so the caller feels you are listening to them and
understanding their complaint.
•  Acknowledge emotions, understand impacts, ask open questions
•  Clarify any points or the timeline of events that you are not sure about
Reality testing
•  Manage the licensee’s expectations about the process and likely outcomes
•  Explain what the complainant says would resolve the complaint for them
What next?
•  Check the licensee’s willingness to engage in the ER process. Gently explain that if
the complaint is not resolved we may need to refer the complaint to a CAC.
•  Give the licensee a time-frame for when you will contact them and make sure they
understand the next steps
•  Facilitators: you'll be making a decision with the team about which process the
complaint will follow and get back to them
•  Senior facilitators: you can make a call on the phone about which process to follow,
so talk to the EO/licensee about the best resolution approach

FLIC
•  Complete the date in the First Contact (licensee) field
•  Add a note to the case of your call (do not file note the call unless agreed
with Team Leader – e.g. if there is an admission of guilt to a serious issue)
•  Save email correspondence in the document tab of the case

Triage
The purpose of triage is to assess cases against agreed criteria and decide what complaint
process is most appropriate for the individual case. For practicality and customer service
reasons, the REA decided in 2011 to offer an alternative process to the CAC in appropriate
cases. The triage criteria ensures consistency and quality of decision making. All decisions
and reasons must be recorded in FLIC.
Preparation
The facilitator will prepare and complete the triage report template and upload the document
to FLIC.

Page 11 of 28

Criteria
There are two complaint processes available: CAC and Early resolution. When deciding which
process is appropriate for the complaint, the triage criteria are:

Is the complaint suitable for the early resolution process? This includes:
•  Limited loss, or consumer harm has occurred as a result of the alleged behaviour
•  It does not appear the licensee intended to breach the rules/Act
•  The licensee has no disciplinary findings in the past three years for similar conduct
•  The issues are unlikely to be a matter of public interest or have a wider impact on
industry
•  Conduct is not repetitive or ongoing
•  Both parties are willing to explore Early Resolution.

If NO to any of these questions, the complaint must be referred to a CAC.
Does the complaint raise issues that should be referred to a CAC?
•  More than minimal quantifiable loss, or consumer harm, has occurred because of
the alleged behaviour; OR
•  The alleged conduct appears to be intentional, reckless or negligent; OR
•  The behaviour appears to be repeated and serious; OR
•  The issues are a matter of public interest1, have a wider impact on the sector or
are a regulatory priority for REA; OR
•  The behaviour must be addressed to maintain professional standards (e.g. set a
precedent) and reputation of the industry

If YES to any of the above issues, refer the complaint to a CAC.
1 Public interest considerations include:
•
The main consideration is the seriousness of the breach
•
The complaint alleges violence, threats, offensive or abusive messages
•
The respondent was the organiser/ringleader
•
The victim was particularly vulnerable, or the offender was in a position of trust
•  Elements of dishonesty or corruption are present in the conduct

How to make a decision
Facilitators should be well prepared to present their case at triage. A triage presentation
should be no more than five minutes, followed by time for team discussion/questions. The
presentation should cover:
•  Party names and history
•  A summary of the complaint ‘story’
•  The outcome the complainant is looking for

Page 12 of 28

•  The disciplinary issues identified
•  The facilitator's proposed approach to the complaint
There are three possible ways of having a triage meeting:
1.  Team triage meeting
The team has two scheduled triage meetings per week (this is flexible). The types of
complaints that facilitators should bring to this meeting are:
•  Complex fact situations or complex disciplinary issues
•  Novel issues where you don't know how they fit in the triage criteria
•  Extraordinarily interesting complaints that might be helpful for the team to know
about
After any triage, take the opportunity to reflect on the questions the group asked you, and
how you might address those questions with future complaints.
2.  ‘Virtual’ triage with a Senior/Team Leader
At any time you can triage a complaint with a Senior Facilitator or Team Leader. The types of
complaint that should be ‘virtually’ triaged are:
•  Where you have FIG'd the complaint
•  Simple or straight-forward complaints
•  Complaints where you have a clear precedent or idea where it should go
3.  ‘Self’ triage
Senior Facilitators are able to independently make triage decisions.

FLIC
•  Add the triage outcome to FLIC. This must include:
o  The criteria involved in your decision and which facts meet which
criteria
o  Any relevant rules or sections of the Act
o  Any relevant case law you considered when making your decision
•  Add a note to the case with the triage outcome

Triage outcome: CAC
Timeframe: 20 days to refer
Notify all parties
The facilitator ensures all parties to the complaint are aware the complaint is being referred
to a CAC, and what the CAC process is. This includes the Eligible Officer of the licensee
respondent.
If the licensee has moved agency, contact their current EO to notify them there is a
complaint being referred to a CAC. Explain the situation arose in the licensee’s previous

Page 13 of 28

employment, and they should talk to the licensee directly for details. Also call the licensee
respondent directly, and the previous EO.
Confirm the key concerns
Confirm the key concerns by email with the complainant. The key concerns are the problems
the complainant has with what's happened, not our assessment of what the disciplinary
issues/breaches of the rules might be. Explain to the complainant if you have identified some
concerns you will also raise with the CAC.
Initial referral report
The coordinator will upload a copy of the “Initial Referral Report” template to FLIC and the
facilitator will complete this report.
Where you have identified issues that are separate to the complainant’s key issues, note
them in the “Key Issues” section, labelled “Additional issues identified by the REA that the
CAC may wish to consider.”
Where you are including FIG documents describe the documents as a bundle in the
“Documentation and Evidence” table of contents as: “Documentation requested from the
agency – note this is not the licensee’s formal response under section 83 of the Act” and
then separately if required "Complainant's reply to the documentation requested from the
agency."
All referral reports must be peer reviewed by another facilitator.
Complaint documents/appendices
The facilitator creates the appendices, which is the bundle of documents sent to the CAC
about the complaint. This should include:
•  The initial complaint and any supporting documents
•  Any further supporting documents provided by the complainant
•  The file note of your conversation(s) with the complainant
•  Any emails to/from the complainant that are about the subject matter of the
complaint (i.e. not process emails). This includes the email where the complainant
confirms the issues
•  Any compliance advice or consumer information letters sent to the parties
•  Any FIG documents obtained from the agency/licensee
•  Any response from the complainant to any FIG documents
•  Do not include file notes of conversations with licensees without approval of the
Team Leader.
Put the documents in logical order. Any FIG documents go at the back of the referral
bundle. Add bates numbers (i.e. page numbers) to the appendices in Nitro and name the
appendices "CXXX Initial CAC Referral Appendices."
Redacting the appendices
Where the referral contains FIG documents, redact third party contact details or sensitive
information from the entire appendices. Third party names do not need to be redacted.
Upload two versions of the appendices to FLIC:

Page 14 of 28

•  The redacted version (labelled Redacted) – this version is sent to the complainant
and the respondent
•  A non-redacted version – this version is sent to the CAC
Make a note on the file for the CAC Administrator that you have redacted the appendices.

FLIC
•  Save the initial referral report to the documents tab of the case
•  Save the PDF appendices to the documents tab of the case
•  Fill in the ‘Handover to CAC Team’ date – if it is after 2pm then the date will
be the following working day
•  Complete the "peer reviewer" field
•  Add notes to reflect the actions taken
•  Change the case managers name to the rostered CAC administrator's name

Triage outcome: Early Resolution
Timeframe: 30 days to resolve
Early resolution is a flexible process where a facilitator or REA mediator applies dispute
resolution skills to enable the parties to resolve the complaint between them. The most
common dispute resolution methods used at the REA are:
•  Facilitation (shuttle negotiation or teleconference)
•  Mediation (teleconference or in person)
Factors to consider when deciding which type of Early Resolution (ER) will best suit the
parties' needs:
•  Do the parties want a confidential process?
•  How complex is the problem?
•  Who needs to be involved?
Discuss the methods with the parties to find out what will work best for them.
Facilitation (shuttle negotiation or teleconference)
Facilitation is a non-confidential discussion between the parties where the facilitator is an
independent third person who guides the discussion. The facilitator's role is to facilitate
discussion between the parties to help them understand each other's perspective and
brainstorm ideas for resolving the complaint, provide neutral information about the Real
Estate Agents Act and Rules, and assist the parties to record any agreements.
The parties must agree and understand this is not a confidential discussion. While the
information provided will not be shared with anyone outside the REA, any information shared
may be documented or kept on file, and may be passed on to the CAC if the complaint is not
resolved.
There are two ways of carrying out facilitation:

Page 15 of 28

•  Through shuttle negotiation - where the facilitator passes understandings/messages
between the parties without the parties talking directly to each other; and
•  Through teleconference - where the facilitator facilitates a meeting between the
parties on the phone
Where the agreed approach is a teleconference, the facilitator will follow the Resolution
Institute 'diamond' (mediation model). Where the agreed approach is shuttle negotiation, a
suggested process is:
a)  Helping the parties to feel heard
The first step in any dispute resolution method is to allow the parties the opportunity to feel
heard. By this stage in the process the complainant and licensee/EO should have explained
their perspective to you. If necessary, spend more time with them making sure to:
•  Understand and acknowledge their recollection of what happened, their emotions,
what impact this has had on them
•  Reflection and summary is a key tool at this stage of the process
b)  Helping the parties to hear each other/share information
The next stage is to help the parties begin to understand each other's perspective. How can
you share the other person's recollection/understanding in a neutral and de-toxified way?
Ask what their understanding is of what's important to the other party.
Explore underlying interests. Encourage them to ask each other questions and clarify
understandings.
c)  BATNA and reality testing
Explore options if the complaint is not resolved.
•  what are the options outside the REA process?
•  what are the options within the process?
If helpful for the parties to understand a licensee's obligations, provide general information
about the Act/Rules/case law says. It's important to frame this neutrally as it's not your role
to judge what has happened/should have happened at this stage of the process.
d)  Option generation
What options can they think of to resolve the complaint? How might that meet the other
party's needs?
e)  Settlement/agreement
If the complaint is resolved (via shuttle negotiation or facilitation), assist the parties to
record their agreement.
Mediation
Mediation is confidential process where an REA mediator facilitates a discussion between the
parties to help them understand each other and resolve their concerns.
The REA may offer parties mediation during the early resolution process where:
•  There are no safety concerns for the parties; AND
•  The parties are willing to explore mediation; AND

Page 16 of 28

•  The concern is able to be remedied by the licensee and/or their agency.
The facilitator's role
If the complaint is triaged for early resolution and the parties have indicated they would like
a confidential early resolution approach, the facilitator will:
•  Call both parties and confirm they would like the complaint referred to mediation.
Explain what the mediation process looks like, that it is a confidential process, and
that the mediator's role is not to provide information about the Act/Rules.
•  If appropriate or requested, provide information to the parties about the
Act/Rules/case law – as the Facilitator you are able to provide this information
•  Provide information about the complaint process options if the complaint is not
resolved through mediation - consumer information, compliance advice, insisted CAC
•  Email the parties to confirm referral to a mediator
Next allocate the file to the Early Resolution Team Leader, who will allocate the file to an
REA mediator (i.e. a facilitator who is an accredited mediator).
If the complaint is not resolved the file is returned to the facilitator to assess the next steps.
FLIC
•  Change the ‘case manager’ to the mediator’s name
•  Complete the mediator field in the Early Resolution tab with the mediator’s name

The mediator's role
The mediator's role is to assist the parties to discuss the issues and explore options for
resolution. The mediator must not offer an opinion, assess the merits of the complaint, or
provide information about the Act/Rules. The focus of the mediation is resolving the issues
as the parties see them.
The mediator, unless otherwise agreed with the Team Leader, should follow the Resolution
Institute model of mediation.
All mediations are done by telephone unless there are clear benefits to a face to face
meeting. Decisions about face to face mediation are at the discretion of the Team Leader.
Pre-mediation calls
The mediator calls both parties to discuss:
•  Confidentiality
•  Authority to settle
•  What the process will look like 'in the room'
•  Explain there will be an observer present
•  The role of each party
•  What's happened from each party's perspective
•  What's their understanding of the other party's perspective
•  What might happen if the complaint is not resolved (BATNA/WATNA)

Page 17 of 28

The mediator will get agreement to the date/time of mediation. Provide instructions, if by
teleconference, for how the parties will get on to the call. Follow up with an email confirming
details.
The mediation
Mediations are always observed by another facilitator so:
•  The facilitator can observe and learn
•  The facilitator can provide feedback and observations to the mediator
•  The mediator has support with any health and safety issues (e.g. threats of harm)
The observer must not be the same facilitator who was initially dealing with the complaint.
The mediator will follow the Resolution Institute model of mediation.

FLIC
•  Add the ‘Date parties agreed to Mediation’ in the Early Resolution Tab
•  Add the ‘Date of Mediation’ once mediation completed
•  Add ‘Resolution Method’ in the Early Resolution tab
•  Add any settlement agreement to the Documents tab

Complaint resolved through early resolution
Any agreement reached between the parties must be documented and kept on file. The
agreement must include:
•  The date of the agreement
•  The parties to the agreement (full names)
•  Details of what is agreed: who will do what by when? Be specific - will the payment
be made by internet banking or cheque? By when? What happens if it does not
appear by that date?
•  The statement: "This agreement is in full and final settlement of Real Estate
Authority complaint reference CXXXX.”
•  That the parties are welcome to seek legal advice about the agreement
Recording the agreement
The options are (it is for the parties to decide which option):
•  For you to record your understanding of what they have verbally agreed/offered and
email to both parties to confirm/agree. You might confirm your initial understanding
by email, and then record this in the “ER_To Parties Complaint Resolved” template
•  For you to record on a formal settlement document (template “ER_Signed resolution
agreement”) what the parties have agreed and have all parties sign the document.
Make sure the parties check the draft document before signing.
•  Have the parties draft their offer by email and you pass their email to the other party
to accept (again by email)

Page 18 of 28

•  Have the parties draft their own formal settlement agreement and have all parties
sign the settlement agreement.
No matter what format of agreement is signed, the settlement must involve a statement that
the complainant agrees to (in writing) to say the complaint is resolved to their satisfaction.
Under section 74(3) of the Act, the Registrar may decide not to consider the complaint
further if the complaint has been resolved to the complainant’s satisfaction. It is important
the complainant is aware that by agreeing to the settlement agreement, the Registrar is
likely to also make a decision that no further action is needed and so it will not go to a CAC.
Section 74(3)(d) decision – complaint resolved
When the settlement agreement has been confirmed, pass the file to the Early Resolution
Team Leader. The Team Leader will consider whether no further action is needed on the
complaint under section 74(3)(d) of the Act (exercising delegated Registrar powers). If so,
the Team Leader will communicate this decision in writing to the parties.

FLIC
•  Upload s74(3)(d) decision and complete “s74(3) outcome” in FLIC
•  Complete fields in Early Resolution tab – at a minimum the Resolution
Method and Outcome fields
•  Make sure all of the documents are in FLIC
•  Complete the ‘Resolve” tab field by adding the Date closed
•  Click on the ‘Resolve case’ button
Complaint not resolved by early resolution
If the concerns cannot be resolved through the early resolution process, discuss the next
steps with Team Leader or Senior Facilitator. The options are:
1.  Send a letter to the complainant (CC the licensee) explaining why there do not
appear to be any breaches of the rules alleged in the complaint.
2.  Send a compliance advice letter to the licensee, copying in their EO. Also send a copy
to the complainant. This letter reminds the licensee of their obligations under the Act.
If the letter addresses their concerns, and they are satisfied the complaint is resolved, we
need the complainant to confirm in writing. The Early Resolution Team Leader may consider
issuing a decision under section 74(3)(d) that the complaint has been resolved.
If the complainant is not satisfied the complaint is resolved the two options are:
•  The complainant does not wish to pursue the matter further. We consider these
complaints ‘withdrawn.’ Confirm this in writing with the complainant, complete the
Early Resolution tab in the case, and ‘Cancel’ the complaint. Where the complainant
does not respond to attempts to contact, consider the complaint withdrawn.
•  The complainant does wish to pursue the matter further. Refer the complaint to CAC,
following the CAC process above. It is helpful the complainant understands:
o  Timeframes for the CAC looking into a matter
o  The possible outcomes of the CAC process (DNTI, NFA, UC, charges)

Page 19 of 28

o  Our initial assessment of the complaint (i.e. that it didn't meet the triage
criteria for referral to CAC, which is why we suggested early resolution
instead)
o  If there is a finding of UC, the possible penalties. What outcome is the
complainant seeking? Is that achievable through the CAC process?

FLIC
If resolved – follow steps in box above
If withdrawn – complete ‘Resolution method’, and record ‘ER outcome’ as “Not
Resolved”
If referred to CAC – Triage the case with an outcome of ‘insisted CAC’

Page 20 of 28

Early Resolution decision tree/process map
*Red boxes show a decision point in the process.
Is it a complaint?
Does it fall under
section 74(3)(a)-(c)?
ER Team Leader
ER Team Leader
considers it does not
considers it does fall
fal under section
under section 74(3)(a)-
74(3)(a)-(c)
(c)
Al ocated to a
May be allocated to a
Facilitator. Facilitator
Facilitator for initial
calls complainant and
complaint call. Then
respondent.
given to Registrar.
Registrar makes
Triage
decision - does it fall
under section
74(3)(a),(b) or (c)?
No
Yes
Early Resolution
CAC
Refer to complaint
Send written decision
process
to complainant and
respondent
Not resolved and the
Resolved between the
Facilitator sends a
If falls under 74(3)(c)
parties
CI/CA letter. Facilitator
then refer to other
then checks with
agency
complainant:
Registrar makes
Complaint resolved.
Complaint withdrawn as
Complaint not resolved
decision under section
Registrar makes
complainant does not
or withdrawn, must be
74(3)(d)
decision under section
74(3)(d)
wish to pursue further
referred to CAC

Page 21 of 28

Triage criteria
Early Resolution
CAC
Is the complaint suitable for the early resolution process? This
Does the complaint raise issues that should be referred to a CAC? This
includes:
includes:
•  Minimal quantifiable loss, or consumer harm has occurred as a
•  More than minimal quantifiable loss, or consumer harm, has
result of the alleged behaviour
occurred because of the alleged behaviour; OR
•  It does not appear the licensee intended to breach the
•  The alleged conduct appears to be intentional, reckless or
Rules/Act
negligent; OR
•  There is no breach of the Rules/Act
•  The behaviour appears to be repeated and serious; OR
•  The licensee has no disciplinary findings in the past three
•  The issues are a matter of public interest1, have a wider
years for similar conduct
impact on the sector, or are a regulatory priority for REA; OR
•  The issues are unlikely to be a matter of public interest or
•  The behaviour must be addressed to maintain professional
have a wider impact on industry
standards (e.g. set a precedent) and reputation of the
•
industry

Conduct is not repetitive or ongoing
•

Both parties are willing to explore Early Resolution.

If YES to any of the above issues, refer the complaint to a CAC.
If NO to any of these questions, the complaint must be referred to a
1 Public interest considerations include:
CAC.
•
The main consideration is the seriousness of the breach
•
The complaint alleges violence, threats, offensive or abusive messages
•
The respondent was the organiser/ringleader
•  The victim was particularly vulnerable, or the offender was in a position of
trust
•  Elements of dishonesty or corruption are present in the conduct

Page 22 of 28

Section 74(3) criteria
This table sets out the criteria the Registrar should consider when making a decision under section 74(3).
Section 74(3)(a)
Section 74(3)(b)
Section 74(3)(c)
Does the complaint disclose only an
Is the complaint frivolous, vexatious or
Should the complaint be referred to
inconsequential matter?
not made in good faith?
another agency?
What is “inconsequential” will depend on the
See table below for definitions of terms.
If the subject matter of a complaint is not
context / facts of the case. Overriding

within the jurisdiction of REA and fits within
questions to ask are:
the different jurisdiction of another agency,
•
the Registrar should refer the matter there.

Is the alleged conduct serious enough
to warrant disciplinary sanctions?
If the conduct is serious but not serious
•
enough to amount to misconduct under s 73,

Has there been a departure from the
acceptable standards of the real
it will not be within the jurisdiction of REA.
estate industry?
Example
Not every breach warrants a disciplinary
A complaint about a bond not being lodged
response. To determine whether a breach is
under a residential tenancy agreement would
inconsequential, all factors must be taken into
usually be better dealt with under the
account.
Residential Tenancies Act, and by Tenancy
Factors to consider:
Services.
•
If the conduct appears criminal in nature,

The nature of the provision of the Act,
Regs or Rules breached – eg is the
the matter should be discussed with Legal,
breach relatively minor eg breach of s
the Head of Regulatory Services and the Chief
121(1)(a) with no impact on
Executive to determine whether it should be
transaction or complainant, or is it a
referred to the Police, the Serious Fraud
more serious breach such as a breach
Office or the Commerce Commission. For
of rule 6.4 (misleading conduct).
example, a complaint is received alleging that

Page 23 of 28

•  Is there more than one breach?
a licensee took a sum of funds from a trust
•
account to pay company expenses intending

Was the conduct inadvertent (not
intentional), a simple mistake or mere
to repay it at some time. This could be
slip?
fraudulent activity or theft and consideration
should be given to whether it is referred to
•  Was the impact of the breach on the
the Police of SFO.
transaction minor?

•  Did anyone suffer any harm or
financial loss, or could have suffered
harm or loss?
•  Has the licensee remedied, or taken
steps to remedy, the conduct or
alleged harm?
•  Likely penalty that would be imposed
if a disciplinary finding was made
taking into account personal factors
and previous disciplinary history of
licensee eg was likely conduct minor,
the licensee has no disciplinary history
and of good character and likely
penalty was an apology?
Can be used where the complaint is frivolous,
but made in good faith
If the behaviour is a more than minor breach
of the rules, it cannot be considered
inconsequential.

Page 24 of 28

Frivolous
Vexatious
Not made in good faith
•  Impossible to take seriously
•  Where the substance of the complaint has
It is likely that if a complaint is vexatious, it will
•
already been considered by a CAC (same
not be made in good faith but that is not

Used to direct insults at another party
complainant or different) and the complaint is
always the case.
•  Doesn’t matter whether it’s likely to be
an attempt to revisit a matter already
successful
The complainant is complaining in a way that is
considered and determined
dishonest or with improper motives.
•  Insincere, no reasonable person would  •  Where the complainant could have raised their
consider the complaint bona fide
Example
issues in another complaint that’s already been
•
Licensee X provides an appraisal on a property.

The complaint does not serve any
considered by another CAC, but didn’t
useful purpose
Licensee X finds out that Licensee Y has also
•  Has an element of impropriety, often a
provided an appraisal and then obtains the listing.
•  Because of a misconception, the
procedural impropriety – eg is there a misuse of  This has happened twice before, and Licensee X is
complainant has brought a complaint
the complaints process
tired of missing out on listings to Licensee Y. He
which is entirely misconceived
•  Complainant is seeking a civil remedy that is
can’t understand why Licensee Y gets the listing
•  So insincere and trivial that it is a
inconsistent with the purpose of the REA Act (ie
but believes it is because Licensee Y is doing
waste of resources looking further into
to raise industry standards and protect
something that should be investigated. Licensee X
the matter.
consumers), its processes or the remedies
makes a complaint claiming that licensee Y is
Example
available under the Act
telling vendors that Licensee X has been found to
engage in unsatisfactory conduct. He has no
Licensee A and licensee B used to work together  •  Further investigation would be unnecessary
evidence to support the claim but believes if
but due to a disagreement licensee B left and
troublesome or cause distress to the respondent  licensee Y was investigated something would be
started his own agency. Licensee A made a
•  Complaint does not raise disciplinary concerns
found!
complaint that licensee B has not placed on his
•  Complaint lacks merit or is baseless, even if the
new company logo that he is licensed under the
NB: If the complaint is frivolous, it could have
complainant thinks it has merit
REAA, even though it is on all other branding.
been made in good faith – for instance, where
On hearing about the complaint, Licensee B
-  Where need to protect defendants from
the complaint is genuinely misconceived.
makes a complaint about Licensee A for
groundless litigation
breaching the REA audit regulations because he
had in the past not filed his annual report to REA

Page 25 of 28

within 10 days as required. REA records showed
-  Need to protect limited resources of the
it was filed 5 days late. Neither provided
judicial system for use in genuine
evidence that there was any consumer harm or
proceedings
loss. The complaints against each other are just
•  Pattern of complex and sometimes
a way to get at each other and to inquire further
incomprehensible complaints
into them would not serve any useful purpose.
•  Repeat complainant with increasing circle of
respondents

•  Extravagant complaints or scandalous allegation
that there is no prospect of substantiating or
justifying.
Example
A couple separate and the family court orders the sale
of the matrimonial home. The agency that the wife
works in is appointed by the Court to sell the property.
Licensee D attends the house to take photos and the
husband is at the property. He challenges the licensee
that he has no authority to be on the property and, as
the licensee did not have a copy of the order, the
husband makes a complaint that Licensee D was on
the property unlawfully. A CAC finds that there was a
valid order and that no further action should be taken.
The house is subsequently sold and several weeks
later the husband makes another complaint about the
agency where Licensee D works because the agency
sold the house unlawfully. Consideration of the
complaint by a CAC would traverse the same matters
that have already been considered and resolved.

Page 26 of 28

Best practice dispute resolution
It’s important for facilitators to reflect on their practice. This should be done on a regular
basis by:
•  Taking some time after calls to think about what went well and what might have
been done differently
•  Debriefing enquiry and complaint calls with colleagues, reflecting on what went well
and what might have been done differently
•  Listening to recorded phone calls with colleagues or the team leader
•  Having structured coaching conversations with the team leader
•  Having structured feedback and reflective practice sessions following mediations and
teleconferences
Where a call comes in through the 0800 number, you may record it as there is a message
explaining calls will be recorded. Where you are recording phone calls through your DDI, you
must ask the caller for their permission to record the call. You should explain why you want
to record the call, and that the call will be deleted after you review it.

Page 27 of 28

Appendix 1
Email template for requesting documents from Agency
Subject: REA case #CXXXXX – Request for information

Dear XXX
CC: Licensee
As discussed, we have received a complaint about [Licensee]. The key issues we are
considering in the complaint are:
•

Please provide documents
We are considering referring the complaint to a Complaints Assessment Committee (CAC),
and need more information to help us decide whether to refer the complaint or not. Please
provide the following information by 5pm day and date [give 3 working days]:
•

At this stage, we don’t need any other information you might hold about the complaint.

We will share any information you provide with the complainant. We will remove any names,
contact details or personal information relating to third parties before we share this
information.

What happens next?
Once we have received the information we will contact you to explain the next steps. We
may decide to refer the complaint to a CAC or to try to resolve the complaint between the
parties.

If the complaint is referred to a CAC
If the complaint is referred to a CAC we will give the documents you provided to the CAC. If
the CAC decides to inquire into the complaint the investigator will contact you to provide a
formal response to the complaint.

Please contact me if you have any questions about this, or if you have any difficulties
meeting the timeframe above.

Kind regards
[EMAIL SIGNATURE]

Page 28 of 28