The Office of the South Australian Small Business Commissioner will attempt to resolve every dispute that is brought before it. This may utilise facilitation processes, direct negotiation and the like in addition to, or as an alternative to mediation. Each dispute will be individually assessed.
Each enquiry or dispute is dealt with in a methodical approach. The key phases of this will be:
SASBC case managers provide expert and experienced general advice to small business operators on their rights and obligations to assist them to quickly and efficiently resolve matters that might be preventing them from operating effectively.
This assistance is provided over the phone, via email and through the provision of up-to-date information on the SASBC website pages.
If the dispute can be resolved at any of the early stages, the aim is to do so.
There is no cost for this service.
In instances where a small business operator contacts the SASBC about a specific dispute with another small business operator, or with state or local government, one of the team’s case officers speaks with the business over the phone and ascertains information about their issue. The case officer will then make contact with the other party to ascertain their perspective of the matter in issue.
The case officer continues to act as an impartial intermediary and works with all parties involved with a view of assisting them to resolve the dispute. This process largely occurs through telephone and email exchanges, however, can also involve face-to-face interactions where appropriate.
The aim at this stage is to reach an outcome that is satisfactory for all parties. Any settlement that is reached by this process will be documented and be legally enforceable.
There is no cost for this service.
In instances where disputes are not able to be resolved through the pre-mediation assistance provided by a case manager, the SASBC facilitates a low-cost mediation with an experienced, independent mediator from the Office’s panel of mediators to confidentially discuss the issue(s) in dispute and try to reach an agreement between the parties.
The SASBC panel of expert mediators have combined expertise and experience in a diverse range of matters, including small business matters, commercial contracts, farming, retail leasing, franchising, mining and building and construction.
The goal of mediation is to assist the parties to explore solutions that are flexible, creative and business driven and to achieve an expeditious resolution of their dispute by agreement without the need to engage with the court system.
A mediation facilitated by SASBC costs $195.00 (under some Acts and Codes), and where parties are able to resolve their dispute with the assistance of a case officer prior to reaching mediation, the service is free.
For a mediation arranged at the request of the parties by the office of the South Australian Small Business Commissioner, the following are to be complied with fully.
Functions of the mediator
- The mediator will assist the parties to explore options for and, if possible, to achieve the expeditious resolution of their dispute by agreement between them.
- The mediator will not make decisions for a party or impose a solution on the parties.
- The mediator will not, unless the parties agree in writing to the contrary, obtain from any independent person advice or an opinion as to any aspect of the dispute and then only from such person or persons and upon such terms as are agreed by the parties.
Conflict of interest
- The mediator must disclose to the parties to the best of the mediator's knowledge any prior dealings the mediator has had with either of them and any interest the mediator has in the dispute.
- In the course of the mediation if the mediator becomes aware of any circumstances that might reasonably be considered to affect the mediator's capacity to act impartially, the mediator will immediately inform the parties of those circumstances. The parties will then confer and, if agreed, continue with the mediation before the mediator.
Participation in mediation
- The parties must participate in good faith with the mediator and each other during the mediation.
- Each party must use its best endeavours to comply with reasonable requests made by the mediator to promote the efficient and expeditious resolution of the dispute.
Authority and representation
- If a party is a natural person, the party must attend the mediation conference. If a party is not a natural person it must be represented at the mediation conference by a person with full authority to make agreements binding on it settling the dispute.
- Each party may also appoint one or more other persons including legally qualified persons to assist and advise the party in the mediation and to perform such roles in the mediation as the party requires.
Conduct of the mediation
- The mediation, including all preliminary steps will be conducted in such manner as the mediator considers appropriate, having due regard to the nature and circumstances of the dispute, the agreed goal of an efficient and expeditious resolution of the dispute and the view of each party as to the conduct of the mediation.
- The mediation conference shall be held within ten (10) working days of the selection of the mediator or within such other period as the parties may agree. Without limiting the mediator's powers the mediator may give directions as to:
- the exchange of experts' reports, the meeting of experts and the subsequent preparation of a joint experts' report with a view to identifying areas of agreement
- narrowing the area of disagreement and clarifying briefly the reasons for disagreement
- the exchange of brief written outlines of the issues involved
- service on the mediator prior to the mediation conference of any such reports and outlines.
- The mediator may meet as frequently as the mediator deems appropriate with the parties together or with a party alone, and in the latter case the mediator need not disclose the meeting to the other party.
- The mediator may communicate with any party orally and/or in writing.
- Any document relied upon by a party and provided to the mediator must immediately be served by the party on the other party.
- Information, whether oral or written, disclosed to the mediator by a party in the absence of the other party may not be disclosed by the mediator to the other party unless the disclosing party permits the mediator to do so.
- A party may prove objective facts, whether or not confidential, by direct evidence in any proceedings in respect of the dispute. Subject to that, all confidential information disclosed during the mediation, including the preliminary steps:
- may not be disclosed except to a party or a representative of that party participating in the mediation or if compelled by law to do
- may not be used for a purpose other than the mediation.
- The following will be privileged and will not be disclosed in or relied upon or be the subject of a subpoena to give evidence or to produce documents in any arbitral or judicial proceedings in respect of the dispute:
- any settlement proposal, whether made by a party or the mediator
- the willingness of a party to consider any such proposal
- any admission or concession or other statement or document made by a party
- any statement or document made by the mediator.
- The mediator will not accept appointment as an arbitrator in, or act as an advocate in, or provide advice to a party to any arbitral or judicial proceeding relating to the dispute.
- Neither party will take action to cause the mediator to breach the previous clause.
- Unless a mediation has been ordered by a court, a party may terminate a mediation by giving written notice to each other party and to the mediator during the mediation conference.
- If, after consultation with the parties, the mediator forms the view that the mediator will be unable to assist the parties to achieve resolution of the dispute the mediator may terminate the engagement as mediator by giving written notice to the parties of that termination.
- The mediation will be terminated automatically upon execution of a settlement agreement in respect of the dispute.
- If settlement is reached at the mediation conference, the terms of the settlement must be written down and signed by the parties and the mediator before any of the participants leave the mediation conference.
- A copy of the settlement agreement is to be forwarded to the Small Business Commissioner directly via email@example.com or posted to GPO Box 1264, Adelaide SA 5001.
Exclusion of liability and indemnity
- The mediator will not be liable to a party except in the case of fraud by the mediator for any act or omission by the mediator in the performance or purported performance of the mediator's obligations in the mediation.
- The parties shall jointly and severally indemnify the mediator against all claims, except in the case of fraud by the mediator, arising out of or in any way referrable to any act or omission by the mediator in the performance or purported performance of the mediator's obligations in the mediation.
- The Small Business Commissioner has determined that the fee payable by each of the parties participating in mediation may be $195.00 inc GST per party, per mediation day (or part of a mediation day), provided that the Commissioner may, at their entire discretion, partly or wholly waive the fee for any or all parties to the mediation.