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FOR YOUR HORTICULTURE DISPUTE
Need Help with a Horticulture Dispute?
The Horticulture Code of Conduct states:
“Growers and traders may use any dispute resolution procedures they choose to resolve horticulture disputes that arise between them.”
The Horticulture Code of Conduct sets out a dispute resolution procedure for horticulture. It applies to the over 12 million horticulture transactions that take place each year between Australian growers and traders of produce for fresh food markets.
Where a grower and a trader have agreed on a dispute resolution procedure which differs from the procedure set out in the Horticulture Code, if one of the parties decides to initiate the procedure set out in the Horticulture Code, the other party must participate in that process as required by the Code.
Despite the freedom parties have to fashion the dispute process, when disputes arise the parties to a dispute do not know where to find a qualified dispute resolver, let alone have the knowledge to devise an appropriate dispute resolution process.
As experts in using the Code and dispute resolution procedures we can provide the assistance you need. If you are unable to agree a dispute resolution process, you can still use the mediation process provided under the Code.
New ways to Resolve your Dispute - Conciliation & Adjudication
The Horticulture Industry needs different types of dispute resolution assistance.
The Code only identifies a mediation service. We can provide a better dispute resolution process to resolve your dispute.
When the Horticulture Code was last reviewed by a Government appointed expert panel in 2015, it said: “the current dispute resolution mechanism is irrelevant, inappropriate and largely not adopted by parties in the horticulture sector.” We agree.
That is why we provide dispute resolution services needed by the industry and tailored for the issues experienced by its participants.
Disputes relating to the quality of delivered produce; timing of the delivery of produce; payment to growers; and transparency of prices.
By arrangement with both parties we can arrange a same day inspection, determination and report regarding the dispute by an expert acting as a Conciliator and Adjudicator:
CONCILIATION The Conciliator encourages the parties to resolve on their own terms and may express their own opinion. In the absence of agreement, the Conciliator makes a non-binding recommendation.
ADJUDICATION In the event of continued inability of the parties to reach agreement and after hearing any further views of the parties, the Adjudicator, will make a binding determination.
Horticulture Dispute Resolver
Derek Minus is the Horticulture Dispute Resolver.
He can help to resolve your Horticulture dispute NOW.
As the former Commonwealth government mediation Adviser for the horticulture industry, he was appointed to assist parties with the resolution of horticulture disputes.
As a barrister, accredited mediator and chartered arbitrator, he knows how the Horticulture Code works and has the skills to personally assist you.
Services are provided at the same rate specified by the Commonwealth Government of $300 per hour (plus GST). Under the Code, each party is required to pay half the fees.
Service and Support Conflict that can affect your livelihood and business relationship can be stressful. We provide the facilities and personal support to get you into resolution quickly.
Need a conciliated agreement? He can be nominated or call upon over 100 mediators Australia-wide who he can refer for appointment by the parties to conduct the mediation of your dispute.
Want an adjudicated decision? With the agreement of the parties the expense and delay of the court system can be avoided with a the appointment of an expert conciliator or private arbitrator.
The Horticulture Code has a 3-STEP mediation procedure
Start the Mediation Process
Under clause 40 of the Horticulture Code of Conduct, a party raising a dispute (the produce supplier or trader) must notify the other party in writing, by sending them a Notice of Dispute setting out:
(a) the nature of the dispute; and
(b) what action the complainant thinks will settle the dispute; and
(c) what outcome the complainant wants.
To make it easy for you, we will professionally prepare your Notice for you. Just fill in the details on our on-line form and we will email it for you, with your supporting documents, to the parties to the dispute.
Once a Notice has been sent, the parties have 3-weeks to negotiate between themselves to attempt to resolve the problems that have been identified before any further action is taken.
Both of the parties to the dispute are under an obligation to attend the mediation and try to resolve the dispute.
A party is taken to attend mediation if the party is represented at the mediation by a person who has the authority to enter an agreement to settle the dispute on behalf of that party.
Where the dispute is long standing and well known between the parties, you can ask the other party to agree to dispense with the period of private negotiation and go immediately to Step 3 and have a mediator appointed to facilitate the resolution of the dispute.
Where a dispute cannot be resolved between the parties within 3 weeks, the Code provides that mediation must take place if either of the parties request that the dispute be referred to a mediator.
A mediation is an assisted negotiation with an independent, accredited and experienced third party. When a mediator is engaged the negotiations can be frank, private and legally privileged. Legislated procedures provide a powerful and quick way to get the parties to meet together and attempt to resolve the dispute in good faith before taking legal action and incurring substantial expense.
You can request the Horticulture Dispute Resolver to refer the dispute to mediator.
Administering your Dispute
When you are ready to proceed to Mediation, we will register your request and assist you provide the information you need to send to the other party. You can upload those documents on-line and we will arrange to email all the material you want to send to them and any other interested parties, like the lawyers.
Because horticulture produce is perishable, we conduct dispute resolution by videoconference so that the parties can take action quickly to understand the nature of the problem and reach resolution. Video-conferencing services are provided at no additional cost, for the conduct of pre-mediation meetings or even the conduct of the mediation.
Our administration staff will personally contact you and the other party to discuss the nature of your dispute, the mediator skills required and the timing of the mediation.
We will refer the dispute to a NMAS accredited mediator who meets your joint criteria.
On-line payment facilities are available to quickly initiate the process. We will prepare the completed mediation agreement for signature as an electronic document and send it to you along with information sheets about the mediation process.
Get a Mediator to assist you
Once a party lodges a Notice outlining their concerns with the other party, it immediately triggers the legislated dispute process.
If the complaint is not resolved at the end of the 3-week period allowed for negotiation, either party can request a mediator be apponted to facilitate the discussion and resolution.
The mediator is an independent and accredited professional facilitator (usually a practising lawyer with franchising experience). The mediator will usually set the matter down for mediation to be conducted in the State or Territory in which the franchised business is based.
Once the mediator sets the date and time for the mediation, the other party:
• must attend the mediation
• must negotiate in good faith
• must pay half of the mediation fees
The mediation process is both privileged and confidential. This allows the parties to talk frankly and openly with each other and with their lawyers present (if required). With the mediator’s assistance, the parties aim to design an outcome to resolve the problem as discussed and defined by the parties.
Multiple Growers in Dispute
Disputes are not only about single issue matters. Often a dispute can relate to regional or related matters (like plant breeder rights). For these disputes, a multi-party resolution process can be effective, economical and efficient.
Whilst the Code of Conducts does not mandate multi-party mediations, many growers who are experiencing similar problems welcome an orderly process of negotiation, conciliation and adjudication that can assist all parties to explore the options and arrive at a joint resolution.
We have specialist skills to work with your grower group to help engage and influence the business relationship.
The recent Commonwealth Senate Inquiry into the franchising industry which has a similar Code process to Horticulture, also requiring “good faith” negotiations, recommended that a mediator or arbitrator be able to undertake multi-franchisee resolutions when disputes relating to similar issues arise.
We have the skills and experience to assist growers and traders explore a similar avenue for resolution.
Dispute not resolved, what next?
The Code resolution process does not provide a mechanism for the mediator to make a determination about the merits of each party’s case. If after 30 days from the mediation starting, there is no resolution, either party can ask the mediator to terminate the mediation.
When a dispute was not resolved by mediation, it used to mean there was no other option for a party (grower or trader) than to “give-up”, take what was offered or initiate expensive and lengthy litigation in the court system.
The recent Franchising Inquiry conducted by the Australian Senate, recommended that the dispute resolution scheme under the Franchising Code, which is similar in nature to the Horticulture Code be amended to include the option of binding arbitration.
Where an arbitration is conducted the arbitrator has the capacity to award remedies, compensation, interest and costs.
If the mediation is unsuccessful, we can assist parties with the legal adjudication of your dispute by appointing an expert arbitrator to make a binding determination.
Contact the Horticulture Mediation Adviser
The Horticulture Code of Conduct specifically requires the appointment of a Mediation Adviser. The Horticulture Mediation Adviser is appointed by the Minister.
The Horticulture Mediation Adviser plays an important role in the resolution of disputes under the Horticulture Code of Conduct as the Adviser can make a binding selection of a mediator for a dispute.
Where a grower and trader disagree about who to select as the mediator, the Horticulture Code provides that either party may ask the Mediation Adviser to appoint a mediator.
The Code provides that if the mediation adviser receives a request under subclause 40(5), the adviser must appoint a mediator within 14 days after receiving the request.
Although the Horticulture Code of Conduct specifically requires the appointment of a Mediation Adviser, the details of who is the current Adviser and how to contact the Adviser, are not publicly available.
You can click the link below to be sent the Mediation Adviser contact information if you need to request the Adviser’s assistance with the appointment of a mediator.