What is Mediation?
Mediation is a process of assisted negotiation. The Mediator (often a lawyer or business professional who is accredited and has experience in the franchising industry) acts as an independent facilitator.
The mediator assists the parties to discuss the issues in dispute and engage in constructive discussion towards creative resolution and is not empowered to make a determination of the dispute (see arbitration).
How does the Mediation proceed?
The mediator first arranges for the parties to sign the Mediation Agreement that will legally govern (and protect) their relationship and the mediation process. The mediation agreement being a binding legal document must correctly identify the (legal) names of the parties.
Once the mediator sets the date and time for the mediation, then both parties:
- must attend the mediation,
- must negotiate in good faith,
- must pay half of the mediation fees.
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 is the Mediation held?
Once a dispute is referred to a mediator, they will decide
(a) how the mediation is to be carried out;
(b) the time and place for the mediation;
(c) the day that the mediation commences.
We use video conferencing is to bring the parties together for immediate discussions.
What are the Costs of Mediation?
Under the Franchising Code, parties must pay for their own costs of attending the mediation and are equally liable for the “costs of the mediation” (unless they agree otherwise).
Costs of the mediation include all reasonable costs associated with the carrying out of the mediation, such as:
- the cost of the mediator
- the cost of room hire
- the cost of any additional assistance (say of expert reports) agreed by both parties to be necessary to conduct the mediation.
The Mediator’s fees are charged at $330 per hour and each party pays half that fee.
Certificate of Mediation
If after 30 days from the mediation starting, there is no resolution to the dispute, then pursuant to clause 44 of the Horticulture Code, either party can ask the mediator to terminate the mediation, and the mediator must do so. Note the mediator determines when the mediation has begun under clause 40(7) of the Code.
The party who initiated the dispute can ask the mediator to terminate the mediation at any time.
Where the mediator terminates the mediation of a dispute, the mediator must issue a certificate to each of the parties, stating:
(a) the names of the parties; and
(b) the nature of the dispute; and
(c) that the mediation has finished; and
(d) that the dispute has not been resolved.