Mediation in horticulture disputes

• The role of mediation in horticulture disputes
• The role of the Horticulture Mediation Adviser
• The role of the mediators
• Preparing for mediation
• What happens at the mediation
• The cost of mediation
• Alternatives to mediation

The role of mediation in horticulture disputes

In business, disputes can be a fact of life. Fortunately there are avenues available to ensure that both parties to a dispute have an opportunity to resolve their concerns. One of those avenues is mediation.

Mediation is a process that allows for resolution of conflicts without resorting to complex and costly legal action. It enables the parties to address their concerns while maintaining their ongoing business relationship.

The Horticulture Code permits growers and traders to agree to use any procedure they wish to resolve a dispute. However, if either party chooses to use the dispute resolution procedure set out in the code then the other party is required by law to participate.

The dispute resolution procedure in the Horticulture Code explicitly states that parties should first try to resolve the issue directly with each other through internal procedures.

If direct negotiations fail to achieve a satisfactory outcome within three weeks, the Horticulture Code provides for mediation—negotiation between the parties facilitated by an impartial third party, the mediator. Under the code, if mediation is requested by either of the parties it becomes mandatory for both to attend the mediation and to try to resolve the dispute. Refusal to attend the mediation and/or make a genuine attempt to resolve the dispute will constitute a breach of the Horticulture Code and a breach of the Competition and Consumer Act.

Mediation may not be appropriate if you require urgent injunctive relief (a court order to stop someone from doing something or requiring them to abide by an agreement). If you are unsure about the suitability of mediation, ask your legal adviser.

The role of the Horticulture Mediation Adviser

The role of the Horticulture Mediation Adviser is to conduct the initial assessment of the complaint and where appropriate, appoint a mediator.

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The role of the mediators

The Horticulture Mediation Adviser has a panel of mediators across Australia — trained in mediation and with commercial experience. Most of them are familiar with horticulture matters or have already mediated horticulture disputes. Mediators do not give legal advice or make decisions like a judge. Their role is to assist the parties to negotiate.

Preparing for mediation

Mediation is similar to a well managed negotiation. It is wise to prepare for the mediation so that you are able to present your argument and weigh up your options. It is important to state your needs and concerns clearly so that everyone understands what you want and why.

It may be helpful to consider:

• your rights and obligations regarding the dispute 
• the main issues you would like to discuss and why they have not been resolved to date
• what you would like to see happen 
• what you are prepared to do to make this happen 
• how the dispute might be resolved if mediation is not successful i.e. are there possible alternatives (such as learning to live with the problem, changing how you do things or going to court) 
• what costs are involved in each alternative and how realistic are these alternatives?

You might also wish to consider:

• what the other party wants to achieve through the mediation process 
• what the other party might accept as a reasonable outcome 
• whether there is a mutual benefit in continuing your business relationship with the other party
• whether your relationship with the other party needs to change to ensure that your relationship continues to progress.

What happens at the mediation

• The parties can bring advisers, but it is not compulsory.
• The mediator will allow the parties to state the problem as they see it, and help them to understand what a reasonable outcome may be for them.
• The mediator will usually meet with the parties separately during the meeting. 
• If the parties reach an agreement at the end of the mediation, the mediator will assist them in writing it down. Once finalised, the written record becomes a binding contract.

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The cost of mediation

The cost of mediation is far less expensive than court action. For mediations under the Horticulture Code, the Australian Government subsidises the mediator's fees to ensure the service is available to all parties.

The person requesting the appointment of a mediator has to pay a $50 application fee to the Horticulture Mediation Adviser. The parties must also pay their own expenses to attend mediation sessions and must share equally any video conference, telephone conference, venue or travel costs incurred by the mediator. 

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Alternatives to mediation

In the few cases where a dispute cannot be mediated, it may be necessary to resort to legal action as the last option.

If you decide to bring court proceedings against another party, remember that if you lose, you may be liable for some or all of the other party’s costs as well as your own costs. You should always obtain your own independent legal advice when considering this option. As part of obtaining this advice, you should seek an opinion as to your prospects of success in any legal action.

If legal action becomes inevitable, it may be useful to first clarify the real issues in dispute through mediation so that the attention of the court can be directed to those specific issues. This will reduce the costs of court proceedings for both parties.

Sometimes the ACCC may also take action, for example, when there is evidence of unconscionable conduct.  Failure to comply with the Horticulture Code is a factor that may be considered when deciding if one business has treated another business unconscionably under Schedule 2, Part 2-2, section 22 of the Act.