The Retail Tenancy Unit (RTU) has now been incorporated into the Office of the Small Business Commissioner.

RTU’s staff are formally trained in alternative dispute resolution strategies and are available to assist landlords and tenants work out their own solutions to disputes about their retail lease.

RTU also utilises independent professional mediators with retail lease experience from its panel. This allows RTU to ensure that each dispute is matched with a mediator to best assist the resolution of the particular dispute.

Alternative dispute resolution

The Retail Leases Act 1994 sections 65 and 68 requires that parties to a tenancy dispute must apply to RTU for mediation before proceedings can commence in the Administrative Decisions Tribunal. Alternative dispute resolution (ADR) refers to the wide variety of methods by which conflicts and disputes are resolved other than through litigation.

ADR was developed in response to growing court queues, rising costs of litigation, and time delays, and includes mediation, facilitation, early neutral evaluation, and conciliation.

You can contact RTU for assistance in resolving a retail tenancy dispute by:

Tel: 1300 795 534 (toll free) or 8222 4800 
Fax: 1300 795 644 (toll free) or 8222 4816
Email: we.assist@smallbusiness.nsw.gov.au

If an issue can not be resolved by informal negotiation between the parties, they must participate in a formal mediation before they can take the matter to a Court or Tribunal (unless the Court or Tribunal is convinced that mediation cannot resolve the dispute). 

The cost for mediation is generally less than $1,000 per party and provides a timely and cost effective method for resolving disputes.  Approximately 80 per cent of matters settle in a matter of weeks without having to go to the Administrative Decisions Tribunal.

Mediation is a process in which the parties, with the assistance of a neutral mediator, identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The mediation is held as close to the shop premises as possible providing a suitable venue can be arranged. The mediator is usually regarded as having a facilitative role and will not provide advice on the matters in dispute. Features of the process are:

Voluntary – parties can leave at any time for any reason, or no reason.

Collaborative – parties are encouraged to work together to solve their problems and to reach what they perceive to be the best agreement.

Controlled – parties have complete decision-making power and a veto over each and every provision of any mediated agreement, nothing can be imposed on either party. The mediator manages the process and the parties control the outcome.

Confidential – mediation is confidential in accordance with the provisions of the Retail Leases Act 1994. Mediation discussions are not admissible in any subsequent court or tribunal proceedings, except for a finalised and signed mediated agreement.

Impartial – the mediator is responsible for assisting each party and will not favour the interests of any one disputant, nor any particular result in the mediation.

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Early neutral evaluation is a process by which the parties present arguments and evidence to a neutral evaluator. The evaluator determines the key issues in dispute and the most effective means through which the dispute may be resolved, without making any determination as to the facts.

Early neutral evaluation is not mediation. The evaluator advises the parties at the outset directly and clearly that their appointment is to act as an evaluator and not a mediator.

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In the facilitation process, a skilled impartial facilitator helps the disputants identify and solve problems by improving each party’s ability to work together effectively.

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Conciliation is a process in which the parties, with the assistance of a conciliator, identify the issues, develop options, consider alternatives and endeavour to reach an agreement. The conciliator may have an advisory role on the content of the dispute or the outcome of its resolution, but does not a have determinative role.

The conciliator is often legally qualified or has experience with, or technical or professional qualifications in the subject area of the dispute that they are conciliating. The conciliator may suggest or give expert advice on possible options for resolving issues in the dispute.

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Arbitration is a process in which the parties to a dispute present arguments and evidence to a dispute resolution practitioner (the arbitrator) who makes a determination. Arbitration is particularly useful where the subject matter of the dispute is highly technical, or the rigours of court-like procedure are desired with greater confidentiality.

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