A better Dispute Resolution process for Horticulture Disputes

It is clear that disputes which usually arise in the wholesale horticulture sector relate to:

1. perceived produce quality
2. timing of delivery of produce
3. transparency of the market price and the end price paid by the trader to the grower, including deductions made by the trader
4. late or non-payment to the grower.

Dispute resolution processes under the Horticulture Code, needed to be:

1. quickly convened
2. accessible in market
3. independently undertaken by an expert
4. binding on all parties.

 
It was recommended that the dispute resolution process used under the Horticulture Code should be based on a conciliation model instead of the current mediation model.

Mediation works best when the parties have equal resources, capacity to negotiate and where time to resolve the issue is not a major concern.

A conciliation model of dispute resolution for horticulture allows for a conciliator—whether an assessor, inspector, surveyor, arbitrator or independent expert—to provide parties with a same day, on market inspection, determination and report regarding the dispute.

As the ACCC points out, under the Horticulture Code of Conduct, growers and traders can choose any dispute resolution procedure, see Clause 38(1).

A dispute resolution procedure can also be described in the horticulture produce agreement, though the grower or trader can instead choose to follow the procedure described in the code.

On-line videoconferencing allows growers to have access to all the information relevant to a transaction and have the ability to negotiate on equal terms with market traders.

A Conciliation-Adjudication process for dispute resolution under the Horticulture Code provides a quick and final result.

The effectiveness of the current mediation procedure under the Horticulture Code of Conduct is a topic of ongoing discussion within the industry. Here’s an evaluation of its effectiveness, along with a review of other dispute resolution mechanisms provided by the Code:

### Effectiveness of the Current Mediation Procedure

The mediation procedure under the Horticulture Code of Conduct is designed to facilitate fair and impartial resolution of disputes between growers and traders. Key features of the current mediation process include:

1. **Structured Mediation Process**: The Code mandates that parties attempt to resolve disputes through negotiation before escalating to mediation. This structured approach encourages direct communication and can resolve many issues at an early stage.

2. **Neutral Mediation**: Mediators are appointed to assist in resolving disputes by facilitating discussions and suggesting possible solutions. Their neutral stance aims to help both parties reach a mutually acceptable agreement without taking sides or making binding decisions.

3. **Mandatory Participation**: Both parties are required to attend mediation sessions, ensuring that all parties have the opportunity to present their views and work towards a resolution.

4. **Shared Costs**: Mediation costs are typically shared between the parties, which promotes a collaborative approach and reduces the financial burden on either side.

Despite these features, several challenges have been noted:

– **Complexity and Expertise**: Some industry stakeholders argue that mediators may not always have specialized knowledge of the horticulture sector, potentially impacting the effectiveness of the mediation process in resolving complex disputes.

– **Timeliness**: The current process may take time, particularly if disputes are complex or if parties have difficulty reaching an agreement during mediation.

– **Follow-Up**: There is a concern about the effectiveness of follow-up mechanisms to ensure that agreements reached through mediation are implemented and adhered to.

### Additional Dispute Resolution Mechanisms Provided by the Code

In addition to mediation, the Horticulture Code of Conduct includes other provisions for resolving disputes:

1. **Internal Dispute Resolution**: Growers and traders are encouraged to resolve disputes internally through their own established procedures before seeking external mediation. This approach can be effective for addressing minor issues and fostering direct resolution.

2. **Horticulture Produce Assessors**: For disputes related to the quality or pricing of produce, horticulture produce assessors may be appointed. These assessors are experts who provide reports on the condition of produce or the fairness of transactions. Their findings can assist in resolving disputes, particularly those related to produce quality or payment.

3. **Code Compliance and Investigation**: The Code includes mechanisms for investigating breaches of the Code’s provisions. Compliance officers or investigators may be involved in examining allegations of non-compliance and enforcing the Code’s standards.

4. **Penalties and Remedies**: The Code provides for penalties and remedies in cases where parties do not comply with the Code’s provisions or fail to adhere to agreed resolutions. This includes potential fines or sanctions for non-compliance.

5. **Dispute Resolution Clauses in Contracts**: The Code requires that contracts between growers and traders include specific dispute resolution clauses. These clauses outline the agreed-upon procedures for handling disputes, ensuring that both parties are aware of and agree to the process before conflicts arise.

### Conclusion

The mediation procedure under the Horticulture Code of Conduct plays a crucial role in resolving disputes between growers and traders. While it has several strengths, such as structured processes and mandatory participation, challenges related to complexity, expertise, and timeliness persist. In addition to mediation, the Code provides other mechanisms, including internal dispute resolution, horticulture produce assessors, compliance investigations, and contractual dispute resolution clauses. Each of these mechanisms contributes to a comprehensive framework aimed at ensuring fair and effective dispute resolution within the horticulture industry. However, continuous evaluation and potential reforms may be necessary to address existing challenges and improve the overall effectiveness of dispute resolution under the Code.

Expert determination is another method of resolving disputes that can be particularly useful in specialized fields, such as horticulture. While it is not explicitly mandated by the Australian Horticulture Code of Conduct, it can be a valuable option for resolving certain types of disputes. Here’s an overview of expert determination and how it fits within the broader dispute resolution landscape:

### **What is Expert Determination?**

Expert determination is a dispute resolution process where an independent expert, who is usually an industry specialist or technical expert, is appointed to make a binding decision on a specific issue in dispute. Unlike mediation or arbitration, where the focus is on negotiating a resolution or making a binding decision respectively, expert determination centers around the expert’s specialized knowledge to resolve technical or factual issues.

### **How Does Expert Determination Work?**

1. **Appointment of Expert:** Both parties to the dispute agree on or appoint an expert with relevant expertise in the subject matter of the dispute. This expert is chosen for their specialized knowledge and experience in the field.

2. **Submission of Evidence:** Both parties present their case to the expert, including any relevant documents, evidence, and arguments.

3. **Expert’s Evaluation:** The expert reviews the evidence, may conduct site visits or consultations if necessary, and makes a determination based on their expertise.

4. **Issuance of Determination:** The expert provides a written decision, which is binding on the parties unless otherwise agreed.

Advantages of Expert Determination

– Specialized Knowledge: The expert’s specialized knowledge and experience can lead to more informed and accurate decisions, particularly for technical disputes.

– Efficiency The process can be faster than going through court or arbitration, as it is generally less formal and focused solely on the technical aspects of the dispute.

– Cost-Effective: It can be a cost-effective alternative compared to lengthy litigation or arbitration, especially if the expert is well-versed in the industry.

Application in Horticulture

In the context of the Horticulture Code of Conduct, expert determination can be particularly useful for disputes involving technical aspects of horticulture produce, such as quality standards, pricing methods, or compliance with specific industry practices. For example:

– Quality Disputes: Disputes over whether horticulture produce meets specified quality standards can benefit from an expert’s evaluation of the produce against industry norms.

– Pricing Issues: Disagreements regarding pricing methods or calculations can be resolved by an expert who understands the relevant market dynamics and pricing formulas.

Integration with the Horticulture Code

While the Horticulture Code of Conduct does not explicitly mention expert determination, parties to a dispute can include expert determination as a clause in their horticulture produce agreement if they both agree to this method. In practice, expert determination may be utilized alongside or as an alternative to other dispute resolution methods such as mediation or arbitration, depending on the nature of the dispute and the preferences of the parties involved.

Conclusion

Expert determination offers a specialized and potentially efficient method for resolving disputes, particularly those involving technical or industry-specific issues. While not explicitly required by the Horticulture Code of Conduct, it remains a valuable option that parties can use to address disputes more effectively within the horticulture sector