Protocol

A.   Timelines and Expectations:
1.   General expectations of the DSF and its mediation processes
  Mediation is not the same as arbitration. Both sides of a dispute must ultimately voluntarily and mutually agree on the decided outcome.
  Resolutions reached through mediation processes are often “iterative” in nature; while the compromises reached may satisfy the parties involved in a permanent way, they do not necessarily completely eliminate the possibility of further evolution, discussion, and/or alternative outcomes in the future, provided these opportunities are acknowledged and mutually agreed by the parties as being part of the process.
2.   Refusal of aggrieved parties to participate
  The DSF presumes that both sides involved in a dispute will agree to participate in a mediation process. RSPO realizes however that good-faith attempts to enter the DSF process by the party against whom the dispute is raised may be met with refusal to use the DSF by the aggrieved side, for whatever reason. Such a unilateral refusal to participate could be used to force the other side through the RSPO Complaints System and thereby incur penalties that might otherwise be avoided had the DSF been successfully used. In such cases the refusal to participate in the DSF must be evaluated by the RSPO Complaints Panel in order to inform their decision about the party against whom the complaint is held.
  In order to inform the Complaints Panel, the Complaints Panel shall direct the DSF Manager to contract an external expert to investigate the nature of the refusal. The primary parties involved shall have the opportunity to object to the expert assigned to this task. The costs for the expert’s investigation shall be born by RSPO.
3.   Completion of the DSF process
Notwithstanding point (2) above, the expectation is that once a mediator has been engaged, that either:
  Resolution will be achieved or at least all parties involved express that adequate progress is reached, within one year, and in particular, accordance with clause 4.2.4. of RSPO Certification Systems (26 June 2007);
  the mediation process will have been abandoned by one or both sides for another avenue of recourse such as the Complaints System; or
  both sides mutually agree to extend the mediation process. In such cases, use of the DSF can be construed under the RSPO Principles & Criteria to be a “recognized dispute resolution process acceptable to both parties,” in which case decisions regarding withdrawal of a company’s certification (or similar adverse actions against said company) are not yet necessary.
4.   Notification and Continuity
  Post-mediation dialogue between the immediate parties using the DSF and their respective stakeholder communities is necessary diligence, to ensure that the resolution(s) reached through the DSF are clearly communicated and thus better accepted.
  In all cases, once a mediator has been engaged, it shall be the responsibility of the mediator to update the Secretariat on the status of the dispute on at least a quarterly basis and also upon resolution or abandonment of the process.

 

B.   Flow and Detail of Events
click to view Procedure Flowchart Please click here to view full Procedure Flowchart

The basic steps involved with use of the DSF are as follows:

1.   Preliminary/Inquiry
a.   RSPO receives a formal complaint through its Complaints System. If the Complaints Panel determines that the case is justified and that P & C are relevant to the DSF’s context, RSPO or its contracted service provider directs the inquiring party to the appropriate information, mechanisms, and/or parties that will enable it to engage the DSF. The Secretariat or its contracted service provider shall document the inquiry, including the name(s) or the inquiring side, the topic and party being disputed against, and the date of the inquiry.
b.   RSPO receives an inquiry from either or both sides of a dispute for assistance through the DSF to resolve a dispute. In such cases the DSF is seen as an opportunity to resolve a dispute before it escalates to the status of a formal complaint under RSPO. Inquiries of this nature, i.e., where no formal complaint has yet been raised, shall be subject to all RSPO requirements for the DSF process, except that they shall be, at their explicit request, exempt from public RSPO announcements and communications about the mediation process as specified in this document, provided that this “quiet” approach is acceptable to all parties of primary standing in the dispute.
 
2.   Initiation - If a party wishes to engage in mediation (i.e., use the DSF), they must notify RSPO in writing of that intention. The Secretariat or its contracted service provider shall document this notification, including retaining the original notification, the date it was received, the basic claim(s) or subject of the dispute, and the opposing side(s) to be involved in the mediation.  
3.   Agreement on a mediator. The mediator must be approved under the DSF and agreed upon by both sides involved in the mediation.  
4.   Once the mediator has been chosen, s/he will then notify RSPO that s/he has been engaged for the work. The Secretariat or its contracted service provider shall note the identity of the mediator and the date on which engagement – and therefore the mediation process – has begun.  
5.   The mediator will conduct the mediation and will report to RSPO. The mediator’s final report shall include at least the following:
a.   That both sides agreed on the process of the mediation, including setting/location for meetings, meeting frequency, and persons to be directly involved in the mediation. The mediator shall include a description of the roles and responsibilities of each person involved in the mediation and an assessment of their suitability to the process.
b.   That both sides agreed on the process of the mediation, including setting/location for meetings, meeting frequency, and persons to be directly involved in the mediation. The mediator shall include a description of the roles and responsibilities of each person involved in the mediation and an assessment of their suitability to the process.
c.   That both sides agreed on the process of the mediation, including setting/location for meetings, meeting frequency, and persons to be directly involved in the mediation. The mediator shall include a description of the roles and responsibilities of each person involved in the mediation and an assessment of their suitability to the process.
d.   That both sides agreed on the process of the mediation, including setting/location for meetings, meeting frequency, and persons to be directly involved in the mediation. The mediator shall include a description of the roles and responsibilities of each person involved in the mediation and an assessment of their suitability to the process.
i.   a presentation of facts by each side and a summary thereby included in the mediator’s report;
ii.   reference to customary laws, applicable; and
iii.   a statement by each side of desired outcomes of the mediation
e.   That both sides agreed on the process of the mediation, including setting/location for meetings, meeting frequency, and persons to be directly involved in the mediation. The mediator shall include a description of the roles and responsibilities of each person involved in the mediation and an assessment of their suitability to the process.
i.   Successful – a mutually agreed outcome. In this case the mediator shall specify the terms of the agreement.
ii.   Unsuccessful – in this case the mediator shall detail the essential nature of the disagreement that still exists and a summary of each side’s stated intentions as to the next step(s) they each intend to take.
f.   An overview of the broader stakeholder engagement done by the primary parties involved in the mediation process, to help ensure that the resolution(s) reached will be durable, along the lines of sections II.A and III.A.3 of this document.
6.   The mediator will conduct the mediation and will report to RSPO as described in Section IV above. The mediator’s final report shall include at least the following:
7.   The RSPO Secretariat or its contracted service provider shall publish the outcome of the mediation on the RSPO website, as well as document the outcome in summary form for the purposes of monitoring and oversight as described in Section II above.
C.   Cost

The costs for the mediator’s services shall be borne in total by the sum payments of both sides engaged in the mediation, with deductions based on discretionary financial support tendered by RSPO. For its first year of operations, the DSF shall publish fee schedules of all mediators approved under the DSF.

In order to calculate the share each side must pay, proportionate to the respective parties carrying capacity, the following factors must be taken into consideration:

  a base administrative fee for maintenance and processing of the data by RSPO or its designated agent;
  costs of travel-related expenses incurred by the mediator and each side engaging in the mediation, compared to overall revenues and financial resources devoted to the operation(s) under dispute;
  the number of individuals (or farming families) poised to benefit from compensation resulting from a positive outcome to the mediation process, the idea being that larger numbers of people can collectively bear more costs;
  the gross revenues and/or volumes gained by the party being disputed against, the idea being the greater the amount, the greater the cost that should be borne.