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Dispute resolution

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 might differ depending on the situation and sequence of events at mediation.

Step-by-step process

Step 1: submitting an application

Before submitting an application, we encourage you to try to resolve the dispute directly with the other party. Read our tips to help you resolve a dispute before applying for help.

If you’re unable to resolve the dispute directly with the other party, complete an application for the VSBC’s help to resolve the dispute. You can submit your application online or via email or post to us, along with any relevant documents, such as a copy of the lease, expert reports, correspondence and photographs.

NB: 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 your application indicates your agreement to this.

Step 2: handling the dispute

After receiving the application, the VSBC appoints a dispute resolution officer to handle the dispute.

Step 3: pre-mediation dispute resolution assistance

The dispute resolution officer forwards the application and any other relevant documents to the other party and seeks a response. The applicant (the person, business or company applying for help to resolve the dispute) is copied into this correspondence.

The dispute resolution officer might attempt to resolve the dispute by phone or email and work through issues with the parties. If applicable, the dispute resolution officer might arrange a meeting with the parties.

Step 4: invitation to mediation

If preliminary help isn’t an option or is unsuccessful, the dispute resolution officer might invite the parties to attend mediation. If you don’t attend, the VSBC might issue a certificate, but this depends on the type of the dispute.

For more information, see our responses to frequently asked questions.

N.B. in some cases, a facilitated meeting might be a more appropriate form of alternative dispute resolution. 

Step 5: 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 session and who else will be attending. This needs to be done before a mediation date can be made.

Learn more by reading our web page on authority to participate in mediation.

Step 6: setting up a time and location

The application is then forwarded to the mediation services team. After receiving the authority and attendance information, the team arranges a date, time and location that suits both parties and their representatives.

Mediations can be arranged to be held at the VSBC’s Melbourne office, in regional Victoria or via videoconferencing.

If needed, an interpreter will be provided during the session at no cost to the parties.

Step 7: appointment of a 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, don’t decide who is ‘right’ or ‘wrong’, don’t give binding judgements and don’t give the parties legal advice.

The mediator will not hand down a decision. They will help the parties to reach their own agreement.

Step 8: confirmation of details

The mediation services team will confirm mediation details with all parties by email. Links to the VSBC’s guide to mediation and mediation checklist web pages are provided as part of the correspondence.

Step 9: mediation cancellation fees

A mediation cancellation fee ($900 half day/$1350 whole day) might be charged if the mediation can’t go ahead. This might be due to a party’s attendance without full authority or if a party cancels the mediation within five business days before and including the mediation date.

Step 10: mediation on the day

  • On 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.
  • The mediator invites each party to explain their position and understanding of the dispute.
  • The mediator might 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. At this stage, they are seeking options that might 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 might request a certificate to take the matter to the Victorian Civil and Administrative Tribunal (VCAT). The mediation session might also be adjourned if the mediator or parties consider that doing so could help in resolving outstanding issues (the process differs with farm debt mediation).
  • Mediation concludes.

What happens if a mediation agreement breaks down?

The terms of settlement agreement (signed at the end of mediation) is a binding document and can be enforced by judicial or tribunal proceedings, if necessary (e.g. by applying to VCAT).

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 VCAT. Before doing so, you might want to consider getting legal or other professional advice.

Other forms of dispute resolution

Facilitated meeting

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 session. 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 our Guide to facilitated meetings.

Determinations

The voluntary Motor Vehicle Insurance and Repair Industry Code of Conduct provides for the mediation and determination of smash repairer disputes by the VSBC. Learn more about applying for a determination.

 

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