Jenni-Maree is an authorised Farm Debt Mediator
Jenni-Maree is an authorised Farm Debt Mediator under the Farm Debt Mediation Act 2019 and is an Associate Member of the Arbitrators and Mediators Institute of New Zealand. She is available to accept instructions from parties throughout New Zealand.
What is the purpose of the Farm Debt Mediation Act?
The purpose of the Act is to provide parties to farm debt with the opportunity to use mediation to reach an agreement on present and future conduct of financial relations between themselves before enforcement action is taken in relation to farm property. Farm property is defined in the Act as any property that is used for or in connection with a primary production business (i.e. a business undertaking that primarily produces unprocessed materials; and includes share-milking) or related activities of the farmer (i.e. business activities that involve primary production and are carried out in connection with a primary production business).
Who can request a mediation?
A farmer who owes a farm debt to a creditor may request mediation in accordance with the Act in relation to a farm debt at any time, unless there is an enforcement certificate in force in respect of the farm debt.
A Creditor may request mediation in accordance with the Act in relation to a farm debt at any time after a farmer is in default in relation to that farm debt, unless there is a prohibition certificate in force in respect of the farm debt.
What is the process for requesting a farmer or a creditor to attend a mediation?
The process to be followed involves:
- A request for mediation is made to the farmer or the creditor in writing. It must comply with any published requirements (s 15(3), s 16(3), s 63).
- A reply to a mediation request must be made within 20 working days after receiving the request.
- A failure to reply within 20 working days is treated as a reply declining mediation. However, the Chief executive may, on application by a farmer made within 5 working days after receiving a request under s 16 extend the time within which a reply must be given where it is “reasonably required”. An extension must be no longer than 10 additional working days (s 19).
- If a creditor declines to mediate it must have a good reason for doing so (s 17(3) and s 18).
What happens after the parties agree to mediate?
If the parties agree to mediate a mediator is appointed by the farmer nominating a panel of 3 authorised mediators. Jenni-Maree is an authorised mediator.
The creditor then accepts one of those mediators. The parties then enter into a procedure agreement. Jenni-Maree will take you through this so that you understand what is involved.
When will mediation take place?
Mediation must proceed as soon as is reasonably practicable after the parties have entered into a procedure agreement. The mediation process may not continue beyond the date that is 60 working days after the date of a mediation request, except with the agreement of the parties. Jenni-Maree will discuss a timeframe with you that complies with the Act’s requirements.
Can more than one creditor be present?
Jenni-Maree will discuss with the creditor and the farmer the advantages and disadvantages of a multi-party mediation if she considers this appropriate having regard to the purpose of the Act and the needs of the parties. If there is a multi-party mediation, each party must enter into a procedure agreement.
Options for tikanga based mediation
The Farm Debt Mediation Scheme allows mediation to include tikanga principles. This will be discussed in pre-mediation meetings and will be included in the mediation procedure agreement. This makes sure all parties agree on how mediation will be conducted.
A tikanga-based approach to mediation recognises that there are differences in applying tikanga across different regions, but the principles remain consistent across Aotearoa.
A tikanga-based mediation process might incorporate and allow for: traditional customary practises such as karakia, pōwhiri and waiata; consensual decision-making, based on kōrero, ensuring the mana of the parties remains intact; collective or communal decision-making; multi-party participation in and attendance at mediation.
Application of good faith
The parties must participate in the mediation process in good faith.
The following can be treated as evidence that a party has not participated in the mediation process in good faith:
- A failure to comply with the provisions of s 21 that relate to appointment of a mediator)
- A failure to enter into a procedure agreement within a reasonable time (s 22(4).
- A failure to comply with the provisions of a procedure agreement without good reason (s 22(5).
- The contents of a mediation report (s 27).
At the end of the mediation, the Mediator must give a report to the Chief Executive and copy this report to the parties. This must include a summary of the mediation process, the names of the parties to the farm debt, the addresses for service nominated by each party to the farm debt, any other information specified in the published requirements, and any further information that the chief executive considers reasonably necessary. The contents of a mediation report may be used as evidence that a party has not participated in the mediation process in good faith.