Farm Debt Mediation in NSW — A few problems
by ALEX ELLIOTT on 05/05/2012 · LEAVE A COMMENT · in MEDIATION

The object of the NSW Farm Debt Mediation Act 1994 is to provide for the efficient and equitable resolution of farm debt disputes. Mediation is required before a bank or financial institution can take possession of the farm or other farm property.

Section 10 of the Act provides that once a farmer gives notification that mediation is required, the bank or financial institution cannot take any enforcement action unless a certificate is in force under section 11.

Section 11 of the Act stipulates that a certificate will be issued by the Authority (NSW Rural Assistance Authority), if the Authority is satisfied that a satisfactory mediation has taken place in respect of the farm debt involved.

Mediation is a structured process in which the mediator, who must be a neutral and independent person, assists the farmer and the bank or financial institution to reach an agreement. That agreement may mean the capitalisation of interest, the extension of repayments, additional advances or increasing an overdraft limit. It may also mean the sale of certain assets over time. There are many possible settlement outcomes available to the parties.

The High Court of Australia in its decision in Waller v Hargraves Secured Investments Limited [2012] HCA 4 has added a substantial complication to the mediation process and any possible settlement.

In August 2003, Hargraves Secured Investment Limited advanced $450,000 to Ms Waller under a loan agreement. The advance was secured by a mortgage over Ms Waller’s farm. She defaulted on the loan.

Mediation was held under the provisions of the Farm Debt Mediation Act 1994. The parties entered into terms of settlement under which there was a second loan agreement for $640,000. This enabled the first loan to be paid out, along with past and future interest.

Ms Waller defaulted on the second loan.

Hargraves Secured Investment Limited commenced action in court for possession of the farm and judgment against Ms Waller.

Ms Waller appealed to the High Court from a decision of the NSW Court Appeal. The argument which was accepted by the High Court was that the enforcement proceedings were not in relation to the farm debt the subject of the mediation. There was now a new and different debt, which was distinct from the first loan. Hargraves Secured Investment Limited had not complied with the Act because the mediation only dealt with the first loan, not the new one.

So it seems that even if a section 11 certificate has been obtained in respect of a farm mortgage, a bank or financial institution must be careful that the farm debt it relates to is the same and has not been discharged in anyway prior to enforcement action. If in doubt it seems that a new notice to the farmer may have to be given.

The High Court’s decision may discourage future lending to farmers because of the uncertainty surrounding this decision. The bank or financial institution may play it safe and only offer in mediation the option of refinancing with another institution, selling the asset or agreeing to surrender the asset to the bank or financial institution. Anything else may complicate future enforcement proceedings.

This is clearly not in the interests of the rural community and the Act needs to be amended as a matter of urgency. A full range of options should be available to comply with the spirit of the legislation.

Alex Elliott

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Zena Zumeta discusses how to frame questions in mediation. This was the March 1, 2017, monthly brown bag lunch of the DRC in Ann Arbor, Michigan.
More info: zenazumetamediation.com
www.theDisputeResolutionCenter.org

We had our first Zoom mediation the other day, and we wanted to share our experience with anyone who may be considering these types of meetings in their case.

Overall, mediation over Zoom went well.

We’re still in the early days of this, so there are some things that we would do differently/better in the future.

We recommend that you use Zoom on your computer, and that you have a back up device for Zoom whether it’s a phone, iPad, tablet, etc.

This is looking like the “new normal” for cases whether we like it or not, but there are some great pros that make this transition easier. Can share documents. Much better than a phone mediation (those often occur in appealed cases).

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First Direct Mediation Inc. is one of the top companies in the industry for debt consolidation and credit solutions. We can help you get a hold on your finances and lower your monthly payments or interest rates. We also specialize in debt investigations. If someone owes you money, we can easily and quickly track them down. Our investigation division is highly trained to deal with bad check cases of all magnitudes in the United States as well as internationally. Call First Direct Mediation Inc. today to find out more about our services.

A demonstration of an actual divorce mediation with Diana Mercer of Peace Talks as the mediator. http://www.peace-talks.com

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Diana Mercer is the co-author of Your Divorce Advisor and Making Divorce Work. She’s been an attorney for over 25 years but doesn’t look a day over 33.

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This week we have something very exciting for farmers!
Tim from Norris Ward Mckinnon talks about the Farm Debt Mediation Act 2019 which comes into effect on the first of July, 2020.