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FRANCHISING DISPUTE RESOLUTION UNDER THE CODE OF CONDUCT
WHAT IS THE FRANCHISING CODE OF CONDUCT?
Conflict between a franchisee (or multiple franchisees) and their franchisor involves a significant power imbalance.
That is why the government has legislated a legally binding, Code of Conduct that franchisees and franchisors are both required to comply with, separate from contractual obligations under their franchise agreement.
The Code provides advantages to usual commercial negotiations as parties can use an “ADR process” that they must attend and must act in “good faith”.
TO INITIATE A DISPUTE YOU NEED TO SEND A NOTICE
Have a complaint that your franchise partner has not resolved? You need to send them a Notice of Dispute.
Until you send them a compliant Notice you cannot activate the Code of Conduct dispute resolution procedures which are quicker, simpler and cost effective compared to litigation and legal processes.
Use our FREE automated service to prepare and send your Notice of Dispute. You can also use it to send MULTIPLE Notices if other issues arise.
MULTI-PARTY Dispute Resolution is now available!
Franchisees with a similar disputes can have their complaint dealt with together.Franchisees, even if they felt they were in the right about a dispute with their franchisor, were afraid to take any action. They were afraid they would be singled out and penalised by the franchisor and made an example to other franchisees of what would happen to them if they spoke ou. Afraid thewy would be singlred he complaint is not resolved at the end of the 3-week period allowed for negotiation, either party can request a mediator be apponted to facilitate the discussion and resolution.
Franchisees with a similar disputes can have their complaints dealt with together
Where 2 or more franchisees have similar disputes under their franchise agreements with the same franchisor, they can may refer the matter to a single ADR practitioner for a single ADR process. franchisees may discuss their disputes with each other, despite any confidentiality requirements provided in their franchise agreements.
The franchisees (Note: Each of the disputes remains separate). Even if the franchisor does not agree that there should be a single ADR process for all the disputes or does not agree to the appointment of the ADR practitioner, the ADR practitioner may conduct the ADR process despite the franchisor’s disagreement.
The mediation process is both privileged and confidential. This allows the parties to talk frankly and openly with each other and with their lawyers present (if required). With the m
If the ADR practitioner conducts the ADR process despite the franchisor’s disagreement, the franchisor is:
required to attend the ADR process (a civil penalty of 300 penalty units applies) and
try to resolve the dispute.
The ADR process may be conducted by means of virtual attendance technology.
Franchising Dispute Resolver
Derek Minus is the Franchising Dispute Resolver.
He can help to resolve your Franchise dispute NOW.
As the former Commonwealth government Mediation Adviser for the franchising industry, he assisted hundreds of franchise partners resolve their disputes.
As a barrister, accredited mediator and chartered arbitrator, he knows how the Franchising Code works and has the skills to personally assist you.
He has been instrumental is seeing the Franchising Code amended to allow franchisees and franchisors use simpler procedures
Service and Support Conflict that can affect your livelihood and value of your franchise can be stressful. We provide the facilities and personal support to get you into resolution quickly.
Need a conciliated agreement? He can be nominated or call upon over 100 mediators Australia-wide who he can refer for appointment by the parties to conduct the mediation of your dispute.
Want an adjudicated decision? With the agreement of the parties the expense and delay of the court system can be avoided with a private arbitration.
The Franchising Code 3-STEP resolution process
Step 1 of the ADR process (conciliation or mediation)
Start the process by sending a Notice of Dispute. The sooner you send the notice the quicker you make them aware of your problems.
Step 2 of the ADR process
The other party must negotiate in "good faith" to resolve the dispute identified in the Notice. If the dispute changes you can lodge another notice with the party to include it.
Step 3 of the Mediation procedure
If after 3 weeks there has been no resolution of the dispute and one party requests a mediator to assist, the other party must attend and pay half of the costs of the mediation.
Start the Resolution Process
Under the Code, the franchisee or franchisor raising the dispute (the Complainant) must notify the other party (the Respondent) of the dispute in writing, by sending them a Notice of Dispute setting out:
(a) the nature of the dispute; and
(b) what action the complainant thinks will settle the dispute; and
(c) what outcome the complainant wants.
We make it easy for you to professionally prepare your Notice. Just fill in the details in response to the questions above into our on-line form and we will email it for you, with all your supporting documents, to the Respondent.
MEDIATION BY VIDEO-CONFERENCE
The COVID-19 pandemic is keeping people from travelling, meeting and mediating.
But NOT us. We have been planning a transition to Mediating by Video for over a year.
We are now live with ZOOM video-conferencing all over Australia.
If you need a mediation – click the link above to START NOW.
WE administer the dispute resolution process for YOU
We provide end-to-end administration of your dispute to ensure a speedy resolution.
Starting with the Notice of Dispute. We properly format the Notice for you, convert it to a PDF document, help you electronically sign it, upload your documents to be sent with the Notice and then send it on your behalf to the other party. We also follow you up to see if you are in contact with the other party.
When you are ready to proceed to Mediation, we will register your request and assist you provide the information you need to send to the other party. You can upload those documents on-line and we will arrange to email all the material you want to send to them and any other interested parties, like the lawyers.
Video-conferencing facilities are provided at no additional cost, for the conduct of pre-mediation meetings or even the conduct of the mediation, if the parties agree.
Our administration staff will personally contact you and the other party to discuss the nature of your dispute, the mediator skills required and the timing of the mediation.
We will prepare the completed mediation agreement for signature as an electronic document and send it to you along with information sheets about the mediation process.
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Multiple Franchisees in dispute with a Franchisor
We have assisted many franchisees from the same franchise system resolve their conflict with their Franchisor. You can avoid the legal wars and explore the opportunities available.
Whilst the Code of Conducts does not currently mandate multi-party mediations, many franchisors welcome an orderly process of negotiation and mediation that can assist all parties to explore the options and arrive at a joint resolution.
Whe are able to work with your group to help engage and influence the franchise relationship.
The recent Commonwealth Senate Joint Committee Inquiry into the franchising industry has recommended that a mediator or arbitrator be empowered to undertake multi-franchisee resolutions when disputes relating to similar issues arise.
We have the skills and experience to assist franchisees and franchisors explore this new avenue for resolution.
Dispute not resolved, what next?
The Franchising Code does not provide a mechanism for the mediator to make a determination about the merits of each party’s case. If after 30 days from the mediation starting, there is no resolution, either party can ask the mediator to terminate the mediation.
When a dispute was not resolved by mediation, it used to mean there was no other option for a franchisee, but to “give-up”, take what was offered or initiate expensive and lengthy litigation in the court system.
The recent Franchising Inquiry conducted by the Australian Senate, recommended that the dispute resolution scheme under the Franchising Code of Conduct remain mandatory and be enhanced to include the option of binding arbitration.
Where an arbitration is conducted the arbitrator has the capacity to award remedies, compensation, interest and costs.
If the mediation is unsuccessful, we can assist you and your franchise partner with the legal adjudication of your dispute by appointing an expert evaluator or arbitrator to make a determination.
Need to contact the Franchising Mediation Adviser?
The Franchising Code of Conduct specifically requires the appointment of a Mediation Adviser.The Franchising Mediation Adviser is appointed by the Minister.
The Franchising Mediation Adviser plays an important role in the resolution of disputes under the Franchising Code of Conduct as the Adviser can make a binding selection of a mediator for a dispute.
Parties can seek to resolve a dispute under either:
• the Internal dispute handling procedure of Division 2 or;
• the Code complaint handling procedure of Division 3.
Where the franchisee and franchisor disagree about who to select as the mediator, the Franchising Code provides that either party may ask the Mediation Adviser to appoint a mediator.
Although the Franchising Code of Conduct specifically requires the appointment of a Mediation Adviser, the details of who is the current Adviser and how to contact the Adviser, is not publicly available.
You can click the link below to be sent the Mediation Adviser contact information if you need to request the Adviser’s assistance with the appointment of a mediator.