New Zealand has never had a legislated farm debt mediation programme, however there is now a Farm Debt Mediation Bill in front of parliament. This article will outline why we need FDM and how the American, Australian, and Canadian experiences can inform our Bill.
Federated Farmers tell us that agricultural debt rose from $12 billion in January 2002 to $61 billion in May 2018. Dairy farms hold the most debt – around $40 billion – the average current mortgage for dairy farmers is $5 million plus. On top of this, dairy farm sector faces a number of long-term challenges, including the impact of tighter environmental regulations, more volatile weather and commodity pricing.
Reviews have revealed that a notable proportion of New Zealand farmers feel “undue pressure” from their banks. Farmers are an important and recognised part of our community.
At personal level, farmers are often the type of self-reliant and indomitable people who are the last to ask for help. Some would say a toxic cocktail with the potential for tragic results. Recent US research – individuals in farming, fishing and forestry have a higher rate of suicide (84.5 deaths out of 100,000) than war veterans (35.3 out of 100,000).
In the US there are state and federal scheme’s and the USDA reports that mediation has been utilised in “tens of thousands of disputes over farm credit”.
In its first year, 2008, the Minnesota FDM Program opened 2002 mediation cases, “Nearly 80% of such cases reached some kind of settlement, meaning farms stayed in business, lenders got paid and people stayed in their communities.”
In Australia, NSW has had a scheme since 1994 and there are now schemes in Victoria, Western Australia and Queensland. It appears that the New Zealand scheme will be based on the NSW legislation.
The NSW scheme is well used and between 1995 - 2016 there were 1659 “satisfactory mediations” that took place with a settlement rate of nearly 90%. The bankers have recognised that farm debt mediation creates an opportunity for bankers to finally sit down with farmers. Recently the range of activities covered by the legislation was extended to include aquaculture and timber harvesting. They take steps to ensure that farmers are fully aware of their rights and are encouraged to seek mediation earlier. There are enhanced penalties for failing to comply, including fines for lenders who taken enforcement action in breach of the legislation.
In Canada during the period 2000 – 2010 there were approximately 500 cases a year. That scheme provides for an administrator who can assist the farmer, including by preparing a detailed review of the farmer’s financial affairs.
Arbitrators’ and Mediators Institute of New Zealand have submitted that they should have an exclusive role in the provision of mediators to the scheme.