About the Consumer Dispute Resolution
Scheme
The Consumer Dispute Resolution Scheme has
been introduced by the Institute to provide fair, quick and
cost-effective resolution of claims brought by consumers against
suppliers of goods and services.
These Rules provide for two stages in the
dispute resolution process, namely conciliation
and arbitration.
- Conciliationis a relatively informal process where an independent
person (the Conciliator) assists the parties to negotiate a
settlement of their dispute.
- Arbitrationis a process which provides a final and binding
determination of the dispute by an independent person (the
Arbitrator), in the form of the Arbitrator's written
Award.
The Institute recommends that parties in
dispute firstly attempt to resolve their differences by
conciliation. Under the Rules, conciliation will always be
attempted first unless one or both of the parties expressly decide
to proceed directly to arbitration.
PRELIMINARY
1.1This Scheme applies to claims by consumers for
monetary compensation or other remedy from manufacturers or
suppliers of goods or services.
1.2This Scheme does not apply to claims for compensation
exceeding $AMOUNT or to claims concerning physical
injury, illness, nervous shock or their consequences.
1.3Registration fees are payable when either an
application for conciliation or arbitration is submitted. These
fees are charged on the scales set out on the Application
Form.
1.4If the Institute considers that a dispute is either
not eligible under this Scheme or is not capable of proper
resolution under these Rules, it shall notify the parties
accordingly and refund the registration fees.
1.5If conciliation is not to be attempted, this must be
stated on the Application Form.
1.6The parties agree that the Institute of Arbitrators
& Mediators Australia its officers and employees, and any
person appointed as Conciliator or Arbitrator, are not liable to
any party for or in respect of any act or omission arising out of
or in connection with these Rules unless such act or omission is
shown to have been fraudulent.
COMMENCEMENT OF CONCILIATION
PROCEEDINGS
2.1Where a written complaint by a consumer has been made
to a supplier or manufacturer and the complaint has been rejected,
or there has been no reply or the parties have been unable to
settle the dispute within four (4) weeks of the date of the written
complaint, the matter can be referred for conciliation in
accordance with these Rules.
2.2Within ten (10) days after receipt of an Application
Form completed by all parties to the dispute together with the
registration fees payable, the President of the Institute (or his
or her nominee) shall appoint a suitably qualified independent
person as Conciliator, and will advise the parties and the
Conciliator accordingly.
2.3Except as provided under Rules 3.6 and 3.7, if the
Conciliator is unwilling or unable to act in accordance with these
Rules, then the President of the Institute (or his or her nominee)
shall appoint a substitute Conciliator as soon as reasonably
practicable, and will advise the parties and the Conciliators
accordingly.
CONCILIATION
PROCEDURE
3.1The Conciliator shall:
(a) adopt procedures suitable for quick,
cost-effective and fair resolution of the dispute., minimising
formality as far as possible; and
(b) be independent of, and act fairly and
impartially as between the parties, giving each party a reasonable
opportunity of putting its case and dealing with that of any
opposing party.
3.2The parties shall:
(a) do all things reasonably necessary for
the quick, cost-effective and fair resolution of the
dispute;
(b) comply without delay with any direction
or ruling by the Conciliator.
3.3Subject to Rule 3.1, the conciliation procedure will
be at the discretion of the Conciliator, but may
include:
(a) convening meetings with the parties, in
person or by teleconferencing, to develop possible solutions to the
dispute;
(b) provision by each party of copies of all
relevant documents or other material to the Conciliator and all
other parties to the dispute.
3.4Unless the parties otherwise agree or the Conciliator
considers that it would not assist resolution of the dispute, the
Conciliator shall provide a written report to the parties prior to
the conclusion of the conciliation process containing the
Conciliator's suggestions for settlement. Any suggestions for
settlement by the Conciliator are not binding on the parties and
are intended to assist the parties to settle the
dispute.
3.5If the parties settle the dispute by conciliation, the
Conciliator shall prepare a written agreement recording the
settlement terms for signature by the parties.
3.6If the parties do not settle the dispute within six
(6) weeks of the Conciliator's appointment (or such other time
agreed in writing by the parties), the dispute may be referred to
arbitration. The documents previously submitted to the Conciliator
shall be passed on to the Arbitrator, together with a report by the
Conciliator on the facts, issues, claims and counterclaims. The
Conciliator must not communicate to the Arbitrator any suggestions
for settlement of the dispute nor any information given in
confidence by either party nor any views expressed by the
Conciliator.
3.7If at any stage the parties agree or the Conciliator
considers that the dispute is inappropriate for continuation of the
conciliation process, then the matter may be referred to
arbitration under these Rules.
3.8Unless jointly requested by the parties, the
Conciliator shall not be appointed as Arbitrator.
3.9The Conciliator shall not act as an advocate, adviser
or witness for a party in the arbitration, or be required to
disclose any information about any matter arising during the
conciliation procedure other than as provided under Rule
3.6.
3.10The Conciliator's fees and expenses shall be paid by
the Institute. Those fees and expenses and the Institute's
administration costs shall be recovered from the sponsoring
body.
3.11Unless otherwise agreed by the parties, each party
shall bear its own costs of the conciliation regardless of the
outcome.
COMMENCEMENT OF ARBITRATION
PROCEEDINGS
4.1If the parties wish to proceed directly to
arbitration, or if conciliation has not resolved the dispute, an
application must be submitted to the Institute on the Application
Form together with the prescribed registration fees.
4.2Within ten (10) days after receipt of a completed
Application Form together with the registration fees payable, the
President of the Institute (or his or her nominee) shall appoint a
suitably qualified independent person as Arbitrator, and will
advise the parties and the Arbitrator accordingly.
4.3If the appointed Arbitrator is unwilling or unable to
act in accordance with these Rules, then the President of the
Institute (or his or her nominee) shall appoint a substitute
Arbitrator as soon as reasonably practicable, and will advise the
parties and the Arbitrators accordingly.
4.4Once the Arbitrator is appointed, all communications
with the Arbitrator should be in writing and should be copied to
all other parties.
ARBITRATION
PROCEDURE
5.1The Arbitrator shall:
(a) adopt procedures suitable for quick,
cost-effective and fair determination of the dispute, minimising
formality as far as possible; and
(b) be independent of, and act fairly and
impartially as between the parties, giving each party a reasonable
opportunity of putting its case and dealing with that of any
opposing party.
5.2The parties shall:
(a) do all things reasonably necessary for
the quick, cost-effective and fair resolution of the
dispute;
(b) comply without delay with any direction
or ruling by the Arbitrator.
5.3Unless otherwise agreed in writing by the parties or
otherwise determined by the Arbitrator, the arbitration shall
proceed in the following manner:
(a) The party making the claim (claimant)
shall, within fourteen (14) days of the date on which the
Arbitrator is appointed, provide to each other party and to the
Arbitrator a document specifying the nature and basis of the claim,
the amount claimed (and how it has been calculated) and any other
remedy sought, and enclosing copies of all documents and any
witness statements or expert reports relied upon in support of the
claim.
(b) Within a further fourteen (14) days, any
other party (respondent) shall serve its response to the claimant's
claim, setting out what it says as to the nature and basis of the
claim, the amount claimed (and how it has been calculated) and any
other remedy sought, and enclosing copies of all documents and any
witness statements or expert reports relied upon by the respondent
in response to the claim.
(c) If any party other than the claimant
wishes to make a counterclaim against the claimant or any other
party, then it shall within the period specified in paragraph (b)
serve a document setting out its counterclaim including what it
says as to the nature and basis of the counterclaim, the amount of
the counterclaim (and how it has been calculated) and any other
remedy sought in the counterclaim, and enclosing copies of all
documents and any witness statements or expert reports relied upon
in support of the counterclaim.
(d) If a counterclaim is served, then, within
a further fourteen (14) days, any respondent to the counterclaim
shall serve its response to the counterclaim, including what it
says as to the nature and basis of the counterclaim, the amount of
the counterclaim (and how it has been calculated) and any other
remedy sought in the counterclaim, and enclosing copies of all
documents and any witness statements or expert reports relied upon
in response to the counterclaim.
(e) If the dispute concerns issues which
involve expert evidence, then if Arbitrator considers it
appropriate, he or she may direct that:
(i) expert reports not be served but that,
instead, the experts retained by the parties are to be each
provided with the material otherwise served, and then jointly meet
(by a time fixed by the Arbitrator) and produce a joint report or
reports (by a time fixed by the Arbitrator) recording the matters
on which they agree, the matters on which they disagree, and
identifying the reasons for any such disagreement and their
respective contentions in relation to same;
(ii) the experts retained by the parties
attend one or more meetings chaired by the Arbitrator, so as to
narrow issues in dispute, which meetings are to be held at a time
and are to be conducted and recorded in a manner directed by the
Arbitrator.
(f) The Arbitrator may make such other
directions or rulings as he or she considers to be reasonably
appropriate in the circumstances.
(g) The Arbitrator shall determine the matter
based on the written material served or produced under this Rule
unless the Arbitrator determines that an oral hearing is necessary
to explain or resolve conflicts in that written material in
relation to any one or more of the issues in dispute.
(h) If the Arbitrator determines that an oral
hearing should be held in relation to any one or more of the issues
in dispute, then that oral hearing shall be conducted as soon as
practicable at a time and in the manner directed by the Arbitrator,
including any reasonable time limits on oral evidence and the
provision of written opening addresses and final
submissions.
(i) Any times fixed under this Rule may be
varied by agreement of the parties. In the absence of such
agreement, on proper cause being shown by a party, the Arbitrator
may vary the times fixed on such terms as to costs or otherwise as
the Arbitrator, in his or her discretion, considers reasonable in
the circumstances.
(j) Subject to paragraph (i), if any party
fails to deliver anything required under these Rules within
fourteen (14) days of the date on which it is due, then:
(i) where a claim or counterclaim is not
delivered, it shall deem to be abandoned;
(ii) where a claim is abandoned, the
arbitration will not proceed unless a counterclaim has been
delivered (in which case the arbitration will proceed on the
counterclaim only);
(iii) where a counter claim is abandoned, the
arbitration will proceed on the claim only;
(iv) otherwise, the arbitration shall proceed
as the Arbitrator considers appropriate in the
circumstances.
5.4Unless the parties otherwise agree, the law to be
applied in the arbitration shall be the law of the place with the
closest connection to the dispute. If the parties cannot agree on
the place with the closest connection to the dispute, then the law
to be applied shall be the law of the state or territory where the
arbitrator ordinarily resides.
5.5As soon as reasonably practicable after receiving all
submissions and evidence, the Arbitrator shall make a final and
binding award with reasons. The Institute will send a copy of the
award to each party and to the organization acting as the
sponsoring body for the Scheme.
5.6Unless otherwise directed, any amount awarded shall be
paid to the party entitled to receive it within twenty one (21)
days of dispatch of the award to the parties.
5.7The Arbitrator's fees and expenses shall be paid by
the Institute. Those fees and expenses and the Institute's
administration costs shall be recovered from the sponsoring
body.
5.8Unless otherwise agreed by the parties or ordered by
the Arbitrator under Rule 5.7, each party shall bear its own costs
of the arbitration.
5.9The Arbitrator may order one party to pay the whole or
part of another party's costs where the first party has acted
unreasonably and caused the other party unnecessary
expense.