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Inform | Mediate | Advocate

Forms for Mediation

The Forms are listed here, and a detailed description of each Form and its place in the process of farm debt mediation, follows.

Form 1 – Notice to Farmer – Notice of Availability of Mediation

Form 1 advises the farmer that:

  • the creditor intends to take enforcement action
  • the farmer is entitled to request mediation with the creditor
  • mediation is low cost and organised by the Office of the Small Business Commissioner
  • the farmer has 21 days from the date the notice was given to request mediation. 

Along with Form 1 the creditor is required to also include:

  • Form 2 to allow the farmer to request mediation
  • Form 8 to allow the farmer to refuse mediation
  • the fact sheets Mediation at the OSBC and Farm Debt Mediation
  • the contact details forRural Business Support which provides free Rural Financial Counselling.  

Form 2 – Notice to Creditor – Request for Mediation re Farm Debt

To exercise their entitlement to request mediation before the creditor takes enforcement action, the farmer sends Form 2 to the creditor.  

Farmers have 21 days to respond and request to enter into mediation with their creditor.

Form 3 – Notice to Creditor – Farmer-initiated Mediation Request

A farmer may request farm debt mediation whether they are in default or not. To exercise this entitlement, a farmer sends a Form 3 to the creditor.

Form 4 – Notice to Farmer – Creditor’s Agreement or Refusal to enter into Mediation

Once the creditor receives a Form 2 or Form 3 from the farmer requesting mediation, the creditor completes a Form 4 to advise the farmer of the creditor’s response within 21 days.

Form 5 – Notice to the Small Business Commissioner – Notice that Mediation is required

Where both parties wish to participate in mediation, the creditor must notify the Small Business Commissioner within 10 days using Form 5.

Form 6 – Application by Farmer to Commissioner for Prohibition Certificate

If the farmer wishes to apply for a Prohibition Certificate, the farmer sends Form 6 to the Office of the Small Business Commissioner.

Form 7 – Application by Creditor to Commissioner for Exemption Certificate

If the creditor wishes to apply for an Exemption Certificate, they send Form 7 to the Small Business Commissioner.

Form 8 – Notice of Farmer’s Decision not to enter into or proceed with Mediation

At any stage, the farmer may choose not to enter into, or continue with, mediation. To do so, the farmer sends Form 8 to the creditor or to the Small Business Commissioner.  

Form 9 – Notice of Creditor’s Decision not to enter into or proceed with Mediation

To exercise its right not to enter into, or continue with, mediation, the creditor sends Form 9 to the farmer or to the Small Business Commissioner.

If the creditor chooses not to mediate, the farmer may apply to the Small Business Commissioner for a Prohibition Certificate, which lasts for six months from the relevant date. If the Prohibition Certificate is issued, the creditor cannot proceed with enforcement action under the farm debt while the Prohibition Certificate remains in force.

When to use each form

Form for creditors initiating mediation

Notice of availability of mediation

To initiate the farm debt mediation process, the creditor sends Form 1 to the farmer.

Form 1 advises the farmer that:

  • the creditor intends to take enforcement action
  • the farmer is entitled to request mediation with the creditor
  • mediation is low cost and organised by the Office of the Small Business Commissioner
  • the farmer has 21 days from the date the notice was given to request mediation. 

Along with Form 1 the creditor is required to also include:

  • Form 2 to allow the farmer to request mediation
  • Form 8 to allow the farmer to refuse mediation
  • the Fact Sheets Mediation at the OSBC and Farm Debt Mediation
  • the contact details forRural Business Support which provides free Rural Financial Counselling.  

Forms for farmers requesting mediation

Request for mediation concerning farm debt

To exercise their entitlement to request mediation before the creditor takes enforcement action, the farmer sends Form 2 to the creditor.  

Farmers have 21 days to respond and request to enter into mediation with their creditor.

Mediation request initiated by the farmer

A farmer may request farm debt mediation whether they are in default or not. To exercise this entitlement, a farmer sends a Form 3 to the creditor.

Form for creditors to notify the farmer if they agree or refuse mediation

Once the creditor receives a Form 2 or Form 3 from the farmer requesting mediation, the creditor completes a Form 4 to advise the farmer of the creditor’s response within 21 days.

Notice to Small Business Commissioner that Mediation is required

Where both parties wish to participate in mediation, the creditor must notify the Small Business Commissioner within 10 days using Form 5.

Notice of Decision not to enter into, or proceed with, Mediation

Farmer’s decision not to mediate

At any stage, the farmer may choose not to enter into, or continue with, mediation. To do so, the farmer sends Form 8 to the creditor or to the Small Business Commissioner.  

If a farmer chooses not to mediate, the creditor can then apply to the Small Business Commissioner for an Exemption Certificate, which lasts for three years from the relevant date. If the Exemption Certificate is issued, the creditor can then proceed with enforcement action under the farm debt (see below for more information).

It is strongly recommended that a farmer obtains independent professional advice from their accountant or solicitor or from Rural Business Support, prior to making a decision to waive their right to request and participate in farm debt mediation.

Rural Business Support provides the Rural Financial Counselling Service in South Australia – a free, independent, confidential and professional service to eligible primary producers facing financial difficulties. Pre-arranged, flexible appointments are available at your business, on your property or at one of their regional offices.

Creditor’s decision not to mediate

To exercise its right not to enter into, or continue with, mediation, the creditor sends Form 9 to the farmer or to the Small Business Commissioner.

If the creditor chooses not to mediate, the farmer may apply to the Small Business Commissioner for a Prohibition Certificate, which lasts for six months from the relevant date. If the Prohibition Certificate is issued, the creditor cannot proceed with enforcement action under the farm debt while the Prohibition Certificate remains in force.

Farmer’s request for Prohibition Certificate

Application for Prohibition Certificate

If the farmer wishes to apply for a Prohibition Certificate, the farmer sends Form 6 to the Office of the Small Business Commissioner.

Prohibition certificate

The Prohibition Certificate will be issued by the Small Business Commissioner if all the statutory requirements are met:

  • The farmer is in default under the farm mortgage; and
  • An Exemption Certificate is not in force; and
  • The farmer has requested the creditor to mediate (Form 2 or Form 3); and
  • Satisfactory mediation has not taken place, because the creditor has refused to enter into, or to continue with, mediation, or at least 3 months have elapsed since the farmer’s request and throughout that period, the farmer has attempted to participate in mediation in good faith, and no satisfactory mediation has taken place.

The Prohibition Certificate remains in force for six months from the relevant date and prevents the creditor from enforcing the farm debt during that period. 

Creditor’s Request for an Exemption Certificate

Application for Exemption Certificate

If the creditor wishes to apply for an Exemption Certificate, they send Form 7 to the Small Business Commissioner.

Exemption Certificate

The Exemption Certificate will be issued by the Small Business Commissioner if all statutory requirements are met:

  • The farmer is in default under the farm mortgage; and
  • A Prohibition Certificate is not in force; and
    • Satisfactory mediation has taken place under the Act, or an alternative dispute resolution process, or
    • Satisfactory mediation has not taken place, because the farmer has refused to participate, or because at least three months has elapsed since the creditor’s request and throughout that period, the creditor has attempted to participate in mediation in good faith, and no satisfactory mediation has taken place.    
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