Dispute resolution process
These steps are a typical process for dispute resolution with the Victorian Small Business Commission (VSBC).
This is only a guide and may differ depending on the situation and sequence of events at mediation.
Submitting an application
If you’re unable to resolve the dispute directly with the other party, complete an application for assistance form about the dispute. You can submit the form online, email or post the form to the VSBC, along with any relevant documents, such as a copy of the lease, expert reports, correspondence and photographs.
Note: the details you provide in the application and any accompanying documents will be forwarded to the other party. Please notify the VSBC if you do not want this to happen.
Submission of the application indicates your agreement to this.
Handling the dispute
Upon receiving the application, the VSBC appoints a Dispute Resolution Officer to handle the dispute.
Pre-mediation dispute resolution assistance
The Dispute Resolution Officer forwards the application form and any other relevant documents to the other party and seeks a response. The applicant is copied into this correspondence.
The Dispute Resolution Officer may attempt to resolve the dispute by phone or email and work through issues with the parties. If applicable, the Dispute Resolution Officer may arrange a meeting with the parties.
Invitation to mediation
If preliminary assistance is not an option, or is unsuccessful, the Dispute Resolution Officer may invite the parties to attend mediation. (If you do not attend, the VSBC may issue a certificate, but this depends on the type of the dispute.)
(See Frequently Asked Questions for more on this.)
Note that in some cases a facilitated meeting may be a more appropriate form of alternative dispute resolution.
Confirming authority and attendance at mediation
If both parties agree to mediation, the Dispute Resolution Officer clarifies with the parties who will be the person with authority to make decisions on the day of the mediation and who else will be attending the mediation. This needs to be done before a mediation date can be made. For more information see authority to participate in VSBC mediation. Each party copies the other party when providing this information. If a party gives authority to a representative to attend mediation but it is discovered at mediation that the representative is not fully authorised, a certificate may be issued stating the party refused to mediate.
Setting up a time and location
The application is then forwarded to the mediation services team.
After receiving the authority and attendance information the mediation services team arranges a date, time and location that suits both parties and their representatives.
Mediations can be arranged at the VSBC’s Melbourne office, in regional Victoria, and can also be arranged using video conferencing.
If needed, an interpreter will be provided during the mediation free of charge.
Appointment of mediator
The VSBC will appoint an independent mediator to help the parties communicate openly, identify options, and reach their own agreement for settlement. Mediators are not judges, do not decide who is ‘right’ or ‘wrong’, do not give binding judgements, and do not give the parties legal advice.
The mediator will not hand down a decision, but rather help the parties to reach their own agreement.
Confirmation of details
Mediation cancellation fees
A mediation cancellation fee ($900 half day/$1350 whole day) may be charged in the event the mediation cannot proceed. This may be due to a party’s attendance without full authority or if a party cancels the mediation within five business days prior to and including the mediation date.
- Upon arrival at the mediation venue, each party goes directly to the reception area where they pay the mediation fee and sign the Mediation Agreement and Confidentiality Forms.
- Each party will then be directed to separate, private breakout rooms.
- The mediator enters each breakout room and introduces themselves and has a short private discussion with each party.
- The mediator invites both parties into the main mediation room.
- The mediator will explain the mediation process to both parties.
- In turn, the mediator invites each party to explain their position and understanding of the dispute.
- The mediator may ask questions to clarify a party’s situation or argument.
- During mediation, a party should direct any questions through the mediator rather than to the other party.
- The mediator attempts to simplify and clearly identify the key issues in the dispute.
- The mediator asks each party to return to their separate breakout rooms.
- The mediator moves between the parties. During this phase they are seeking options that may resolve the dispute, clarifying positions and identifying opportunities for compromise, negotiation, or creative alternatives, until a decision is reached to settle or not.
- If mediation results in a settlement, terms of settlement are drawn up. All parties confirm and sign the terms.
- If settlement is not achieved, mediation ends, and either party may request a certificate to take the matter to VCAT. The mediation may also be adjourned if the mediator or parties consider that it may assist in resolving outstanding issues (the process differs here with Farm Debt Mediation matters).
- Mediation concludes.
What happens if a mediation agreement breaks down?
- A certificate is issued only if the parties do not come to an agreement and the dispute remains unresolved.
- The Terms of settlement is a binding agreement. If one party breaks the agreement, a certificate can be requested to apply to the Victorian Civil and Administrative Tribunal (VCAT) for enforcement of the agreement.
What if I made an agreement at mediation and have since changed my mind or am no longer satisfied with the agreement?
The VSBC cannot set aside, rewrite or enforce an agreement that has been reached at mediation.
There are, however, steps you can take. If you want to challenge or enforce an agreement, it might be appropriate for you to apply to the VCAT. Before doing so, you might want to consider getting legal advice.
Other forms of dispute resolution
A facilitated meeting is an alternative form of dispute resolution that the VSBC can use when a mediation isn’t suitable or appropriate. An example is when there are several parties involved in a dispute with the one organisation.
A facilitated meeting is more flexible than a mediation. The Commissioner appoints a facilitator who sits with all parties to guide the participants through the meeting and make sure everyone has a say.
For more information download the guide to facilitated meetings.
A voluntary Motor Vehicle Insurance and Repair Industry Code of Conduct (the Code) started on 1 May 2017. It provides for the mediation and determination of smash repairer disputes by the VSBC. Under the Code, the VSBC is an approved determination provider to determine smash repairer disputes where mediation has failed. To read published determinations, access the Code or lodge a dispute, go to the Motor Vehicle Insurance and Repair Industry Code of Conduct web page.