ADR Course Notes PDF

Day 1 ===== Why is litigation expensive? - Time - Preparation - Hours in court - 9 of 10 hours you're sharpening the axe -- Lincoln quote Why do people hire a lawyer? - Maximising their outcome - They have a dispute - Alternative to the dispute - Staying at conflict is also...

Day 1 ===== Why is litigation expensive? - Time - Preparation - Hours in court - 9 of 10 hours you're sharpening the axe -- Lincoln quote Why do people hire a lawyer? - Maximising their outcome - They have a dispute - Alternative to the dispute - Staying at conflict is also a choice -- to be at risk of loss, to sit in risk and discomfort - Amygdala (brain) -- am I safe? Am I in danger? - A lawyers job is to give their client an alternative not to sit in that state of discomfort. - Think deeper -- what does it mean to the client -- their life is on hold making different decisions while the dispute is continued. Disputes -------- What is a dispute? - Disagreement -- lawyers are not usually needed for disagreements. People with disagreements wouldn't need a lawyer -- only people with conflicts need a lawyer -- usually gone up a notch or several notches. - Conflict -- going to the core of something. Affects ideals, beliefs or sense of self - Something preventing access to the prefrontal cortex - Conflict vs combat? -- and an adversarial system -- brinkmanship -- holding a position until someone tells you that you're right/wrong. - Look at what the timeframe of cases are -- think about what the impact on your life would be and the impact of people's problem-solving ability. What skills does a lawyer need? - Your role as a lawyer includes critical thinking and guidance of your client -- know the law but know when you have to put your foot on the gas and when you can take it off. - Say less and listen more to the client. They can easily find the law and might know it What is justice? - Closure - Not equality -- there would be no dispute if it was equal How long does it take a lawyer to form a position? - Straight away - Lawyers think they're professionals and should hold firm on their position - Positions generally have a right or a wrong answer Interests? - Harder to identify - Hold many options for solutions - Lawyer tells the client specific parts of the clients story that will be beneficial to the position -- there is a whole story but not everything is considered. Judge only bases the legal decision on a tiny portion of the story. - Learn to decipher interests and positions -- more meaningful outcomes Mirror neurons (brain) - When a monkey held a banana, their happiness centres lit up - When the owner of the monkey held it, their happiness centres lit up but not as much - As a legal advisor, your job is not to dismiss it because that will fire the client up and increase their emotions. The limbic system will fire it up. Epistemic trust -- look into this - Only when you have built that connection and level of trust will you be able to influence their opinion on the dispute - The client will feel misunderstood if you don't have that connection with them. Resolution ---------- Resolution: - Sometimes the resolution isn't about the numbers, it is about a legal fight - Left out of a will: I don't want to be excluded, I'm a member of this family and made contributions that should be recognised. - Equal parenting time: don't want to be seen as the lesser parent. - Personal injury: needs money to install non-slip shower -- interest: wants to feel independent in their home. - Need to find out what closure means to the client Two phases - Pre-emptive transaction work -- dispute resolution clauses in contracts -- pre-empting the costs associated with disputes. Less exposure to dispute resolution practices themselves. Putting something in a contract without knowing what the actual process is. - In most cases, you need to engage in another dispute resolution process before going to trial. - Why might a court want people to solve outside: courts are limited in the orders they can make -- parties can agree on anything. Judges are not the only people who can make hard decisions. Parties are the best people to make the decision as they will be impacted by those decisions. - Litigation Conflict vs combat - Combat is a response to conflict - Combat is one-dimensional (binary thinking) - Combat thinking is an embedded wat to respond to conflict - Anne's view: we don't need combat to respond to conflict in 2025 Relevant jurisprudential theories --------------------------------- 1. Therapeutic Jurisprudence 2. Economic agency theory 1. **Therapeutic jurisprudence** - A legal outcome isn't always a just outcome and doesn't always resolve the dispute. - Eg, family law and wills and estates. Relationship breakdown is a fundamental personal rejection. The process of getting to that outcome involves a recognition and apology which allows that psychological repair. - The money often doesn't heal the conflict but the process might help. 2. **Economic agency** \*Books if interested: Freakenomics and nudge - Unequal bargaining power - Encourages avoiding brining unrealistic expectations to court The rise of ADR --------------- - Mediation used to have a bad reputation - In the mid-1990's, Lord Woolf conducted a report -- so many defects in the system as it existed in the 90's - Found that litigation was too expensive, slow, unequal, uncertain and very difficult to forecast the cost by the time you get to the end of the process. Fear of the unknown which makes compromise very difficult. When everything is uncertain, it's easier to fight. Australian developments ----------------------- - A number of developments in the way civil litigation was conducted - Civil Dispute Resolution Act 2011 - NADRAC -- provided advice on all things dispute resolution orientated. Abandoned in 2013 -- perhaps because alt dispute resolution was more embedded. **7 National ADR principles (NADRAC):** 1. Self-responsibility is the first step 2. Early resolution is good resolution 3. Listen and participate 4. Be informed when choosing an ADR process 5. Use ADR, then the courts 6. Ask questions about ADR 7. Share knowledge about ADR accurately Productivity Commission Report -- Warren Mundy - Interests of lawyers and clients don't always align. - Lawyers may drag it out and unnecessarily increase fees when it isn't what the client wants The expectations of lawyers --------------------------- Solicitors conduct rules - Paramount duty is to the court and the administration of justice (not to the client) - Client's interest is secondary to your own and to the court's - Duty to only give the court matters in which all other options were exhausted beforehand - Duty to act honestly - Requirement to deliver legal services competently, diligently and as promptly as reasonably possible [Uniform Civil Procedure Rules 1999 (Qld)] Important: What is the purpose of the Uniform Civil Procedure Rules 1999? **Philosophy overriding obligations of parties and court** 1. The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense. - What does it mean for litigation systems if everyone becomes experts in alternative dispute resolution? Privately funded Dispute Resolution event: If parties can afford a private method of resolution, the government requires them to use those resources to save the public purse. Family Law Act and Family Dispute Resolution: - Except in cases of urgency, everyone must have attempted to resolve their disputes before commencing litigation. - Section 60I certificate -- a party didn't attend, a party attended and didn't make a reasonable effort, couldn't reach a party, not appropriate matter for alternative dispute -- reason for not resolving the issue. - Encourages practitioners to think about what the outcome and closure for that family could look like. The dispute resolution spectrum: Negotiation - Cheap - Get what you get Mediation - First one where there is some established formality - Rules that accompany mediation - Rules accompany the process, not the content, experience, or outcome - Less formal than litigation but not informal - Focused on interests, not so much positions - Doesn't produce a binding agreement - Entirely private/confidential - Possible to enter into a bad bargain Conciliation and Case Appraisal - Authoritative party involved - Parties have a choice of the process taken but does not have control over anything else - Non-binding decision - Could be less than what you'd get at a trial Arbitration - Parties lose the capacity to determine the outcome - Much more formal - Much more driven by the evidence Litigation - No ability to privately enter the dispute - The case might become a precedent - Have no ability to control anything -- resolution becomes public - Undoing a resolution is very difficult and risky Day 2 ===== Arbitration =========== Guest speaker: Erika Williams, Independent Arbitrator Overview of arbitration - Private process - Disputing arbitrators agree to make a final and binding decision after receiving evidence and hearing arguments from the parties. - All because the parties have agreed to arbitrate. - Fundamental element: party agreement and autonomy - Agreement is often included in a contract (eg, agreement will be included in a contract to build a bridge/boat) - Singapore: leading arbitration hub, closely followed by Hong Kong - ACICA.org -- most things Erika is speaking about is on here. - Energy and resources are far in the lead, followed by construction and infrastructure. Key features of arbitration - Enforceability - Confidentiality - Parties choose own arbitrator -- might need specific expertise in an area. Can choose an arbitrator familiar with particular commercial practices or subject areas. - Neutral Forum - More informal and flexible (can be more efficient) - Party autonomy - Limited rights of appeal/grounds for challenge -- a positive if you're a winning party New York Convention - This Convention shall apply to the recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought, and arising out of differences between persons, whether physical or legal. - It shall also apply to arbitral awards not considered as domestic awards in the State where their recognition and enforcement are sought. - Australian jurisdiction can only be enforced in 34 jurisdictions. You would be negligent not to put an arbitration clause in a contract -- Erika's partner Other considerations: - Costs - Who are the parties? - The risk of fractured dispute resolution - Arbitrator's powers more limited - Speed - Limited rights of appeal/grounds for challenge -- a negative if you're a losing party - Only 5 grounds for challenge, if not, award is upheld ***Robotunits v Mennel*** - Shareholder and employment agreement - Shareholder agreement had an arbitration clause - Employment agreement did not have an arbitration clause - Shareholder agreement went to arbitration but employment agreement had to be referred to court - "Each party irrevocably and unconditionally submits to arbitration in accordance with the arbitration guidelines of the Law Institute of Victoria" -- this is a made up Institute. Did not agree that the arbitration clause is pathological (inoperable). With judicial assistance, clause could be operable. The parties had to agree to the arbitral seat and the rules of arbitration. - Shows that Aus courts are pro arbitration The Australian Context: - *International Arbitration Act 1974* (Cth) implementing: - New York Convention - UNCITRAL Model Law - ICSID Convention - Domestic *Commercial Arbitration Acts* in each state and territory reflect the Model Law - All states and territories can refer to each other and also other countries if in a similar form and based on the Model Law. - Federal and State Courts have specialist arbitration lists - Australian Centre for International Commercial Arbitration (ACICA) - Resolution Institute Types of arbitration +-----------------------------------+-----------------------------------+ | International | Domestic | | | | | | - If they have their place of | | | business in Australia | | | | | | - If the Model of Law applies | +===================================+===================================+ | Institutional | Ad hoc | | | | | - ACICA | | | | | | - Resolution Institute | | | | | | - Singapore International Arb | | | Centre | | | | | | - Hong Kong International Arb | | | Centre | | | | | | - Provide administrative | | | assistance to the matter | | | | | | - ACICA have rules that the | | | parties can use on how to | | | conduct an arbitration | | | proceeding | | | | | | - If parties agree to use the | | | rules, they can appoint an | | | arbitrator | | +-----------------------------------+-----------------------------------+ | State | Private (commercial) | +-----------------------------------+-----------------------------------+ Investor-state arbitration -------------------------- Agreement to go to arbitration is in a Bilateral Investment Treaty and some Free Trade Agreements - Australia's involvement so far: - Philip Morris -- sued Aus gov for bringin in plain packet tobacco legislation. Gov said no, you created Philip Morris Hong Kong for creating Hong Kong Australia BIT. - Restructured in 2011 when he knew Aus was thinking about bringing in this legislation. - Philip's purpose for restructuring was for the sole purpose of avoiding Australian jurisdiction - Clive Palmer suite of claims - Zef Investments -- suing Aus for breaches of the Asian New Zealand Free Trade Agreement. Breached the agreement to remove Palmer's ability to seek compensation from WA - Established investments for the sole purpose of seeking relief under the FTA - Potential Future Investor-State Disputes: - APR wind turbines: - NuCoal cancellation of mining licences Australian Claimants in ISDS Matters ------------------------------------ - White Industries Australia Limited v The Republic of India - Tethyan Copper Company Limited v Islamic Republic Pakistan - Western African Aquaculture, Kurt Lennart Hansson and Martje Bolt Hansson v Gambia [https://williamsarbitration.com/wp-content/uploads/2020/12/Foreign-Investors-Increasing-Awareness-of-Investor-State-Arbitration----view-from-Australia.pdf](https://williamsarbitration.com/wp-content/uploads/2020/12/Foreign-Investors-Increasing-Awareness-of-Investor-State-Arbitration-%E2%80%93-view-from-Australia.pdf) Drafting arbitration clauses - Keep it simple - Key elements: - Broad definition of dispute - Arbitration institution/rules - Seat -- you don't have to be in the place. If the parties want to enforce the award, they need to go to the courts of the relevant jurisdiction, but arbitrator can be anywhere. Apply to the court of the seat. Supervising, procedural court. The hearing can happen anywhere -- doesn't need to be in the place of the seat. - Language - Number of arbitrators - No need for specific jurisdiction clause ACICA Model Arbitration Clause Any dispute, controversy or claim arising out of, relating to or in connection with this contract, including any question regarding its existence, validity or termination, shall be resolved by arbitration in accordance with the ACICA Arbitration Rules. The seat of arbitration shall be Brisbane, Australia \[or choose another city\]. The language of the arbitration shall be English \[or choose another language\]. The number of arbitrators shall be one Lor three, or delete this sentence and rely on Article 11 of the ACICA Arbitration Rules\]. Enforcing Arbitration Agreements - Arbitration agreement must be in writing - Where proceedings are commenced in court and the proceedings involve the determination of a matter that is capable of settlement by arbitration pursuant to the arbitration agreement the court shall stay the proceedings and refer the parties to arbitration - The court shall not refer the parties to arbitration if the agreement is null and void, inoperative or incapable of being performed. - *Freedom Foods v Diamond Growers* - Appeal dismissed on the basis that the parties had entered into an arbitration agreement. Misleading and deceptive conduct under the ACL so not suitable to be determined by arbitration. However, misleading and deceptive conduct is capable of being determined by arbitration. - The agreement was a franchise agreement and in Aus, the franchising code prohibits arb clauses where the arbitration requires action to be started outside of Australia - Parties' agreement was not a franchising agreement and could be arbitrated in California. ***HKL Group Co Ltd v Rizq International Holdings Pte Ltd (Rizq No 1)*** - No such thing as the Arbitration Committee at Singapore - \"Any dispute shall be settled by amicable negotiation between two Parties. In case both Parties fail to reach amicable agreement, all disputes out of in connection with the contract shall be settled by the Arbitration Committee at Singapore under the rules of The International Chamber of Commerce of which awards shall be final and binding both parties. Arbitration fee and other related charge shall be borne by the losing Party unless otherwise agreed.\" - Court held that if the parties agree that the dispute should be settled by arbitration, then the clause is operable ***Lee v Lin & Anor \[2022\] QCA 140*** - \"\...the parties agree to refer the dispute to the Australian Commercial Disputes Centre (ACDC) [for final settlement by a single arbitrator appointed in accordance with the Rules of the ACDC], or by another dispute resolution process suggested by ACDC and accepted by the parties. It is expected that any fees payable to ACDC or to the person appointed by ACDC will be paid by the parties equally. - If the parties have been unable to resolve their dispute through ACDC, either party may commence Court proceedings but not before the expiry of 28 days from the date of referral to ACDC. Arbitration procedure - How to commence an arbitration - How to respond to a notice of arbitration - How to appoint an arbitrator or arbitral tribunal Requirements: - Look to an institution (eg, ACICA, SIAC, ICC, HKIAC, LCIA, Resolution Institute) - File a notice of arbitration ACICA Practice and Procedures toolkit - Sample Notice of Arbitration - Rules will say what you need to include in your notice - Demand that the dispute will be referred to arbitration - Contact details of the parties etc - Arbitration agreement and governing law - Seat and language of arbitration - Nature and circumstances of report For an expedited arbitration, there are other rules. SIAC: relatively neutral, becoming increasingly popular HKIAC: used mostly for China and Hong Kong LCIA: international disputes, one of the oldest international arbitration institutions ACICA: most expensive but most highly recognised. Mostly used for high value disputes Notice of arbitration: - You must respond to a notice of arbitration- if not, the arbitration can proceed without you. - If you are trying to resist, you can look for some issues with the notice of arbitration. Eg, wrong institution or rules, wrong party, issued to the appropriate address for contact (failure to be properly notified), have any prerequisites been met -- eg, dispute resolution clause requires a mediation before an arbitration - Must respond within the ACICA rules timeframe (28 days) - They have 40 days to appoint the arbitrator The arbitral process - Case management conference/preliminary conference to establish the procedure of the arbitration - Memorial style response gives the respondent the opportunity to tell their story -- template on the ACICA website: Memorial Suite Statement of Claim - Can agree on no disclosure - Red fern schedule -- limited form of requesting documents. Categories of documents the parties want and why they want it and why its relevant and material to the case. The party producing the document can agree or reject and then the arbitrator will decide which ones are necessary and not - If a tribunal secretary should be appointed - PO1 -- procedural timetable at the end. Parties must comply by the PO1. - Ensure the parties will have a reasonable opportunity to present their case - Award must be signed, dated and in writing Enforcing arbitration agreements and awards ------------------------------------------- The court may only refuse to enforce an award if: - a party was under some incapacity at the time the arbitration agreement was made - arbitration agreement not valid under the law of the agreement - party not given proper notice of the arbitration proceedings or was otherwise unable to present case - award deals with subject matter beyond scope of arbitration agreement - composition of arbitral tribunal not in accordance with arbitration agreement - award not yet binding on parties or has been set aside in law of country in which made - *Hubb Street v Energy City Qatar*- Energy City Qatar bypassed the agreed procedure and appointed 3 arbitrators. The arbitrators appointed an award in favour of Energy City Qatar, they didn't send a notice giving Hubb Street an opportunity to agree on the arbitrators. Therefore, the arbitration could not be enforced in Australia. - the subject matter is not capable of settlement by arbitration - to enforce the award would be contrary to public policy -- used the most often (breach of rules of natural justice, eg reasonable opportunity to present their case) - *Sino Dragon Trading v Natural Resources* -- had to use WeChat. Had video but not audio. Arbitration was conducted in part. Arbitrator asked the parties if they had an opportunity to present their case. Tried to bring a claim that there was not a reasonable opportunity to present their case. - award affected by fraud or corruption - breach of rules of natural justice *Hankuk Carbon Co, Ltd v Energy World Corporation Ltd* \[2024\] FCA 232 - Ex parte application allowed if: - Award creditor has not been formally notified by the award debtor of an objection to the award; and - Award creditor not aware of any other reasonably arguable basis upon which the award debtor may object to the enforcement of the award. - If application allowed, award debtor is to be given 28 days notice to oppose the order enforcing the award. - Following evidence that award debtor was aware that it had 28 days to oppose and did not do so, court lifted stay on orders enforcing the award. Risks associated with arbitration - Not much room for appeal -- good if you're successful, bad if you are not. But positive: people won't enter into these agreements if they don't have a good claim. - Ousting the jurisdiction of the court - Private judging system deciding whether each issue falls under the umbrella of topics of arbitration - Confirmatory bias - Have to have enormous trust in your arbitrator Two cornerstones of arbitration - Parties have to agree to arbitration (must have a way to assess capacity) - An arbitrator must provide each party with a reasonable opportunity to present their case Case Appraisal ============== - An ADR process available after court proceedings have been commenced - Involves a third party making a non-binding decision. The decision will only become binding if all parties consent to it - UCPRs set out the process for referral to case appraisal - The case appraiser has full control over the process - Section 45(1)(b) Civil Proceedings Act 2011: case appraiser may adopt any procedure that will, in the case appraiser's opination, enable a sound opinion of the likely outcome of the dispute to be reached. - Can ask anyone for information (associated costs to be agreed by parties or subject of court order (UCPR 337) - Has same authority as the court making the referral but can onlu make a decision that the court could make in the case (and cannot punish for contempt) (UCPR 335) - Has the same power to make a costs order as the court (UCPR 340) - Parties have the same appearance rights as before the court - Can require a witness by order of the court s 46(2) Civil Proceedings Act - Case Appraiser has authority of the Court in the event of a non-compliance Who is usually a case appraiser? - Retired judges - Barristers & silks Commonly used in the Land Court and the National Sports Tribunal Land Court: - Case appraisal is available re conduct and compensation agreements (CCA) for land access under the Mineral and Energy Resources (Common Provisions) Act 2014 National Sports Tribunal: - Non-binding opinion given only verbally - Case appraisal used as a hybrid - Conflict for case appraiser? When they have an opinion that everyone is aware of and then need to help the parties negotiate their outcomes - Mostly good for black and white answers Key features of case appraisal: - Third party decision - Requires consent of all parties to finalise on basis of that decision - Process controlled by appraiser - Private - Individualistic - Timely When and why is case appraisal preferable to a trial? - Dress rehearsal -- if you're wrong you can find more evidence to support your case before going to court - Privacy - Time pressured FCFCOA Judicial Settlement Conferences - Convened by judge or other judicial officer -- not the trial judge - Purpose is to finalise the matter by challenging and evaluating the expectation of parties prior to a trial - Gives parties exposure to a court room and judge - No evidence of documents prepared for the conference, concessions or offers made are admissible in court proceedings (other than the limited circumstances provided by s.131 of the Evidence Act (Cth)) - Judge will destroy/return to the parties any documents prepared for the purpose of the conference - Held in a Court room - Potential separate discussions with parties - Judge expresses a view and explores evidentiary and other case weaknesses - Consent orders made at conclusion where agreement is reached Some fact scenarios to consider *Fern v Trustees of the Tate Gallery* - People from viewing platform could see a site but could also see into someone's apartment - Hundreds of people could be on the viewing platform at a time - Entry was free - Could see into 4 levels of units - Open every day Best dispute resolution method: doesn't matter. Mediation -- positive because cheap. Arbitration -- positive because confidential Day 3 ===== Conciliation ============ Guest speaker: Shiv Martin History of conciliation - The word conciliation is used in the Constitution but it is not defined - Designed for workplace disputes - There isn't a uniform definition or standards for conciliation - Conciliation report, November 2021 - Over 23,000 conciliations each year -- a majority of which end in agreement Independent Third Party Intervention Modes In Conflict (to help people resolve their dispute) - **Facilitative** - (this is the hat that mediators wear -- assist with communication, ensure that each party has an equal opportunity to speak, don't suggest solutions) - **Informative** - (gives info and stats, leave it with the parties to decide what to do next) - **Evaluative** - (listen to the dispute, give information on entitlements and rights, talk to any relevant agents and decide to have a conciliation conference, facilitate conversation about what the issues are, might give expectations and options to resolve) - **Determinative** - (hearing process, parties put in submissions and a commissioner decides the outcome and remedy) These are low cost options for solving disputes -- if you have a \$500 dispute you won't bring in a lawyer. Determinative will probably involve lawyers. The features of each extreme: [Facilitative (Mediation)] - Options and Outcomes decided by the parties - Third party facilitates the discussion but does not provide advice - Allows rebuilding of trust and respect. - Not suitable where there are power imbalances, lack of trust, misunderstanding of legal obligations. - May lead to inconsistent outcomes - Lack of transparency [Determinative/Investigative] - Third party assesses submissions and evidence Procedurally onerous - Resource intensive for all parties - Adversarial - Outcomes based on a set of rules, policies and procedures. - Does not build trust or a future cooperative relationship between parties. Ways of resolving conflict - Interest based - Rights based - Power based How do we determine whether an interest-based or rights-based approach is appropriate? - Where there's a power imbalance (ie, tax office vs student) -- probably going to be conciliating not mediating. - Rights-based is preferred where there is a public interest Organisations that practice conciliation: - Human Rights Commissions - Financial Ombudsman (AFCA) - Building and Construction (QBCC) Key variables in conciliation between organisations: - Compulsory/non-compulsory - Legal representation/no representation - Limitations/no limitations on conciliated outcome - Parties meet with conciliator jointly/separately - Dedicated role/part of broader function - Time allowed for conciliation - Confidential/non-confidential - Low/high volume - Evaluative role of conciliator Stages of Conciliation 1. Intake and preparation (includes information sharing, may include a jurisdictional assessment, identifying correct parties) 2. Conciliators opening/introduction 3. Agenda or list of issues (scope of conciliation) 4. Joint discussion -- information sharing between parties 5. Private sessions -- confidential one on one discussions with conciliator 6. Joint negotiation and agreement forming 7. Conciliator to confirm how the agreement fits within legal/regulatory framework and make appropriate records Risks of conciliation: - Depends on the knowledge of the conciliator - Preparedness of the conciliator - Short timeframes -- only 1.5 hours -- dismisses personal concerns - Privacy risk -- less accountability. Nobody knows if the conciliator has done something wrong unless they're familiar with how the process is meant to be undertaken Mediation ========= - Oldest Dispute Resolution Process - Legal backdrop - Confidential - Non-binding - Autonomous - Independent Mediator Job of a mediator: everyone gets closure History of mediation in Australia --------------------------------- (refer to slides) Mediation Contexts ------------------ - Court ordered - Voluntary - The more personal the context, the more difficult it is to sit through a mediation and talk about their experience - Legally assisted - Most mediations are legally assisted - Mediator skills and background - Many different backgrounds, eg, social workers, some may not have legal backgrounds. - International and Domestic - Most mediation occurs on a domestic scale - Before during and after proceedings - Australian Mediator and Dispute Resolution Accreditation Standards Which disputes suit? - International disputes - Commercial civil disputes - Other civil disputes - Industrial/employment - Personal Injuries - Neighbourhood disputes - Interpersonal disputes - Family Law - Children's Court - Wills and Estates - Not enough money to litigate - Black and white cases Models of Mediation - Therapeutic - Powerful tool for vulnerable people - Settlement - Highly transactional, doesn't usually involve lawyers, nobody facilitates it, very simple - Facilitative - Most commonly applied in theory and practice - Evaluative - Most commonly applied in theory and practice - Conciliation Facilitative - See less in this in practice than evaluative model Evaluative - Requires expertise in the content from the mediator: eg, retired judges, barristers etc Mediation - 80% success rate - Non-binding - Rapport driven - Confidential - Impartiality of mediator -- want them to have expertise - Autonomy of decisions -- decisions are made by the parties. Lawyers play a crucial role in helping them accept their agreement. Parties will often want a nudge in the right direction. - You don't need to be an accredited mediator -- the parties can decide themselves who they want to assign Mediating International Commercial Disputes - Great number of international commercial disputes arise in Singapore (Singapore Convention on Mediation) - Promotes mediation as an alternative to arbitration (which is expensive) and litigation Key criteria of Singapore Convention - The mediation settlement agreement must be international in character (Art 1(1) SCM) - The dispute must be commercial: excludes family, inheritance, or employment law (Art 1(2) SCM) - The agreement has not arisen as a consequence of a judgment or arbitral award (Art 1(3)(b) SCM). - No preferred model -- Convention refers to the concepts of "mediation" and "conciliation" interchangeably Party state may refuse to grant relief pursuant to the terms of the agreement if: - a party to the settlement agreement was under an incapacity. (Art 5(1)(a) SCM) - the settlement agreement is not binding, or is null and void, inoperative or incapable of being performed under the law to which it is subjected. (Art 5(1)(b) SCM) - there was a serious breach of applicable mediator standards by the mediator (Art 5(1)(e) SCM), - there has been a failure to disclose circumstances that raise doubts as to mediator impartiality or independence (Art 5(1)(f) SCM), without which the party would not have entered into the agreement; - granting relief would be contrary to the public policy of the Party state. (Art 5(2)(a) SCM) Fact scenarios to consider *Commonwealth Bank v Amadio* - Parents couldn't speak English - Lied to his parents and said guarantee was only going to be for 6 months & max \$50,0000 - Parents didn't read the docs and Amadio didn't explain risks to his parents - Bank demanded that Mr & Mrs Amadio pay the debts under the guarantee and sold their home - Individual who made the representations will be caught up in this - Why would the bank want to attend a mediation or conciliation? Best alternative dispute resolution method: conciliation -- have someone who can provide the relevant information, power imbalance. Can't make Vincenzo come to the mediation or conciliation. Day 4 ===== Mediation ========= - Voluntary - A decision-making process -- decisions are required to be made by everyone in the process, but mainly by the parties - Structured -- if a mediator is good, it won't feel like a structured process - Resolution focused - Consensual outcomes Mediation is not: - Counselling - Arbitration -- a mediator should not express a view and they cannot make a decision - Unassisted dialogue -- they might focus on emotional factors, might focus too much on the problem, the mediator needs to assess where there might be solutions (which is hard for a client to do but easier for the mediator to do since the mediator has no vested interest in the outcome) - Unstructured - Meditation 10 tips from Robert McClelland on the benefits of dispute resolution 1. **Don't create unrealistic expectations** -- counterproductive and unprofessional. Clients also have too high expectations when the lawyer tells them what they want to hear. Start as you mean to continue 2. **Appreciate the difference between mediation and court-based adjudication** -- dispute resolution is aimed at persuading the other party where court-based adjudication is aimed at persuading the judge. A party can rely on the law, framework and everything else that is meaningful to them. 3. **Know the law** -- Dispute resolution occurs in the shadow of the law. Most law is statute-based and it is not hard to stay on top of it. 4. **Prepare without parading knowledge** -- frequently, advocates engage in the anxious parading of knowledge. Sometimes of knowledge, or problems with the other party's case. 5. **Recognise the past but shift the focus to future solutions** -- give participants an opportunity to vent but bring them back to finding solutions. 6. **Work on making common ground --** parties emotional costs, time in preparation for the dispute, loss of privacy, focus on the actual area of the dispute. Allowing a client to proceed where the costs outweigh the benefits is unprofessional. 7. **Avoid ambit claims that have little or no foundation --** carefully assess the aspects of a client's claim. Cost-benefit analysis is not justified. 8. **Even the most complex of matters can be broken into component parts --** assess the prospect of each component part of the claim. Work through the best and worst alternatives to a dispute and what each resolution might be. 9. **Present constructive solutions --** DR can achieve outcomes that are difficult to achieve even at litigation. Suggesting several possible solutions has a better probability of success than pushing for one. 10. **Place a cost-benefit analysis on obtaining additional information** -- for lawyers having shades of grey, it might be more difficult than it is for the client. The mediator should: - Help the parties exchange uncertainty for certainty - Be the voice least heard -- applies to both the mediator and the legal representatives. At some stage, the lawyers have to retreat (they run in front of the client, they walk with them together, one where they run behind) -- mediation allows for the second two to take place effectively - Not work harder than the parties -- they own the solution. Mediators should not decide the case (even in their head) - Not decide the issues Strengths: - Interests based - Spoken process -- long letters are usually unhelpful in resolving matters - Flexible -- process and outcomes - Relationship preservation - Cost effective (cf litigation) - Private forum Challenges: - Voluntary - Non-binding - Power imbalances - Private forum -- subject of some criticism -- possible to enter into a bad bargain - Unfair outcomes? -- mediator's obligations if one party is underrepresented? Ask the party if they are sure/if they have had any legal advice about this/is it essential that a solution is found today/would you like to speak to someone about this before commencing? Facilitative mediation - Take away all your legal skills and unlock interpersonal skills - Legal representatives have months to get to know their client Conflict management requires: - Understanding of the phases of conflict - Curiosity - Lack of judgement - Patience -- information and outcome - Flexibility - Stamina Phases of conflict - Prelude phase -- can be long and masking (unmet needs) - Avoidance -- neuroscience and conflict - Triggering event -- moves beyond private sphere - Aggression -- respondent aware - Intervention -- third party aware (needs can become unclear) - Resolution -- formal or informal Vital elements of mediation - Confidentiality (must establish) - Impartiality (cf neutrality) (must maintain) - Autonomy (must retain) Within the model - Group discussions: all parties and advisors - Positive: info can't be misconstrued, nobody feels like they are being spoken to behind their back. - Disadvantages: lack of privacy, inability to take instructions or give advice without everyone hearing it -- potential for superficial dialogue. - Advisors only: mediator and lawyers - Positive: speed, find out if there is something that the parties have to agree to disagree on - Shuttle: private rooms - Positive: freedom of communication, what parties say in private rooms with mediator must be kept confidential (mediator cannot disclose to other parties) - Negative: blinds are down -- behind the scenes, inefficiency/slower **Accreditation** Australian Mediation and Dispute Resolution Accreditation Standards Once the decision to mediate is made: - Selection of mediator - Mediation process and style - Language/culture dynamics resources - Setting and location (online) - Legal representation - Preparation expectations Process fundamentals 1. Intake -- make or break, people are most emotional at this time 2. Opening 3. Joint Session 4. Information Gathering 5. Negotiation 6. Agreement and Documentation 7. Close 1. **Intake** - First Contact (consider admin) - Screening - Rapport building opportunity - Framework setting - Active listening Intake checklist: - Rapport - What lies ahead -- what is this process? - Confidentiality - Non-judgement (Transference and Counter Transference) - Interests Identification - Positive priming - Reframe - Details 2. **Opening** - Mediation location - Meet and greet prior - Who speaks - Room set up - Purpose Opening checklist: - Gravitas/authority -- controller of process - Rapport - Foundation of process - Confidentiality - Positive problem solving - How not to polarise - The bucket of good will 3. **Joint Session** - Participants - Location - Purpose Joint session checklist: - Gravitas/authority -- controller of process - Rapport - Confidentiality - Positive problem solving - How not to polarise - What to do about -- - Entrenched views - Power imbalance - Mental health - Poor advice - Lack of information 4. **Information Gathering** - People - Lawyers (Mediation Statement) - Documentation - Purpose Information gathering checklist - What's requested? - How does it help resolve the issue? - What's available? - How does having it assist? - What's not available? - How does not having it affect negotiations? - What to do? - Is there enough information to make a decision? 5. **Negotiation** - Separate - Together - Timing - Transparency - Purpose **Conflict styles** A picture containing drawing Description automatically generated - Complexity loves Order: 1. Simplify The Complex -- M.I.S & K.I.S 2. Support an Organised State of Mind 3. Be Realistic Negotiation checklist: - Reality testing - Doubt creation - Risk assessment - Managing Impasse WATNA/BATNA = worst and best alternative Need to consider: - Power Imbalance - Lack of Information Separate sessions - When - Why - What happens there - Material disclosure 6. **Agreement and Documentation** - Written - Heads of Agreement - Settlement Deed - Who drafts? Who signs? When? - "Stickability" 7. **Close** - Who needs it? Lawyers and mediators both need closure too - Brain Family Dispute Resolution ========================= - Section 601 Family Law Act -- make a genuine effort to resolve that dispute by family dispute resolution before the Part VII order is applied for - Parties have to try to come to an agreement before making an order under the court Restorative Justice Conferencing - Those affected by the crime can: - tell their story (cf prove the offence) - talk about how the behaviour has affected them - ask questions of the person responsible and/or their family - mitigate fears of future harm - secure an apology/recognition/insight from the person responsible - make an agreement about how to repair that harm - move towards closure Benefits for victims: - Sense of justice and safety - Increased ability to move forward with life - Active role in outcome/process - Most would recommend to other victims Benefits for parties responsible: - Take responsibility - Reconsider direction life is taking - Gain insight into impact of behaviour - face the damage you caused by hearing from the person you have harmed - Provide restitution for victims - Reparation of disappointment from family and relationship/situational improvement Day 5 ===== How lawyers do their jobs - Risk-focused approach Original options for solutions: - Negotiation - Court Other options for solutions: - Mediation - Collaboration - Negotiation - Arbitration - Self-service/AI - Court **Collaborative Practice: Therapeutic Jurisprudence** - Born in 1990 -- Stu Webb - Find the outcome that advantages everyone - Non-adversarial - Interest based and creative - Both parties represented - Neutrals - Technical experts - Communications experts -- communications neutral: keep everyone going when the tensions are high - Ouster clause -- if we don't come to a binding agreement, the lawyers who acted for each of the parties in the process cannot go to litigation. This clause stops a lot of lawyers from going to collaborative practice - Family, Wills and Estates - IACP/AACP/QACP **AI and what the future might hold:** - Be alert but not alarmed Industry response: - Focus on automating processes that are high-volume and repetitious - Entirely precedent based and based on common themes -- can be easily replaced by AI - Think about how to find areas of agreement rather than areas of disagreement -- AI overlooks common ground. When AI becomes able to find common ground, there will be a lot of progression in AI. - AI doesn't know how people respond to certain situations Lawyers as first responders: - AI will be effective in speeding up what's already happening AMICA: - App where you can plug in all info that you might hold and get legal advice - Not a commercial product Ethics: - The mediator/conciliator/arbitrator -- same as ethical obligations of lawyers. Confidentiality. They are officers to the court so that is their main duty. They need to uphold the integrity of the system. - The legal advisor -- overarching obligations What if the mediator was pushing your client around/to have a view? Obligation to the client: tell your client what you're observing even though it may create stress and pressure for you. **Pre-Emptive Opportunities** - Conflict coaching Thinking like a resolutionist (William Ury ted talk): - Going to the balcony - Remove the arrows Harnessing the power of positive problem solving - By saying less and listening more - By deliberately influencing others in a positive way - By creating opportunities where solving the problem is the focus - By knowing when to hold firm and when to relax - Positivity is not trivial - Technical cases lose nothing by taking a positive approach The key skill? Listening How we listen - Your job as a listener is not to make sense of what the speaker is saying, it's to help the speaker make sense of what they are thinking. **Active listening** - Verbal and non-verbal acknowledgement LARS - Listen - Acknowledge - Reframe - Summarise **Positive problem solving: a handful of ideas:** 1. Be overtly compassionate -- you develop trust much quicker 2. Listen actively -- investment in your relationship -- it's not all about the nail 3. Be a calm role model -- mirror neurons: if you are calm, it is more likely that they will be calm as well 4. Prime for the positive -- think that the whole purpose of this process is to bring the client to closure 5. Ask different questions Traps and challenges: - Transference: when you meet someone, you transfer onto this stranger connections that you've had with others. Eg, when someone reminds you of someone, you may transfer your standards onto them. - Counter transference: when someone else is doing it to you. Tips and traps: - Unconscious bias: assume things that are not there because of our personal frame of reference. Can't necessarily control your bias - Confirmatory bias: where you've seen a similar scenario before and immediately suggest the same solution when it may not be the same - If you only focus on the problem, you might miss other important factors Dispute resolution is about changing perspectives - If all you do is keep the same positions the whole way through, then you are moving towards a determinative method. - Our perception of the world is inhibited by the devices we use to describe it. Playing to natural strengths - **Colour** - People who were given a red pen found 30% more mistakes than those who were given a blue pen. When people use red, they are more critical - People would pick a book with a red or blue cover. Those who used the blue book had more creative responses than the red book. Exposure to blue facilitates flow and a more creative way of thinking. - Drunk tank pink makes you physically weaker. - **Language** - Arbitrary linguistics: eg, driving North a hilly terrain -- people conclude that you are driving up a hill (but nothing says that) -- language has a disproportionate effect on our conclusions. - Simple messages: - Encourage reliance pm simplifying stereotypes - Are less likely to challenge and - Are easier to overlook - Content that requires greater degrees of concentration and a "furrowing of the brow" encourages deeper thought before drawing a conclusion. - The language we use to describe what we see affects what we actually see - Environment - Where we are shapes who we are - The more people we are with, the more self-protective we are - Attention restoration therapy -- patients were all undergoing an operation. Tested the capacity to absorb pain post-operation. One lot were put in a ward which had nature exposure and the other were put in an enclosed ward. Those exposed to nature didn't need as much pain medication and recovered more quickly. - Forest bathing **What we have shapes our behaviour** Where there was a pedestrian at a pedestrian crossing, 100% lower socio-economic status cars stop while less than 50% of higher socio-economic status cars stopped. Those who had more were less inclined to comply with the law and the value of life. **Positive priming** - Study: outliers of happiness and productivity -- why is it that they're an outlier. Extent to which external stimulus can change perceptions. - People who held warm drinks said they'd hire someone, people with cold drinks said they wouldn't. - People who had a firm clipboard and working pen said they'd hire someone. People who had a flimsy clipboard with no properly working pen said they wouldn't.