South Australia creates office of small business commissioner to assist small businesses in resolving disputes through ADR

There are some 142,000 small businesses in South Australia and an office dedicated to supporting dispute resolution and avoidance in this area was created in March 2012.  The independent body, headed by a small business Commissioner appointed by the Governor, is able to assist small businesses in the event that they are in dispute with a government department or agency or another business. The Commissioner can exercise certain powers to compel the provision of information and the parties may be asked to attend a meeting or invited to attempt mediation.

Enabling legislation has deliberately chosen not to include a definition of “small business”  to ensure that as many businesses as possible are able to seek the Commissioner’s assistance. Phone and email inquiries are encouraged and if the Commissioner is able to assist, initial advice and information will be provided. 

If the dispute is not resolved by the informal process, the Commissioner can invite the parties to participate in a confidential mediation conducted by an independent mediator (fees of AUS$195 per party per day apply).  Parties are expected to approach the mediation in good faith and use their best endeavours to resolve the dispute. Statistically around 80% of such disputes in Australia are resolved through mediation, so it is hoped that this process will be successful. If settlement is not reached, however, the business can choose to litigate the dispute in the courts in the usual way.

As part of its function, the Commissioner is required to develop a number of industry codes designed to ensure appropriate conduct and foster relationships between small businesses and between small businesses and government bodies. These codes will be considered by the Minister of Small Business and, if approved,  given legislative force.  The first two industries under consideration are farming and franchising. The Commissioner will consult on the development of these codes.

These developments reflect those underway in New South Wales.

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Filed under ADR, Australia, Consumers, Government proposals and consultations, Mediation (General), Other ADR processes

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