ADR Notes - Exam PDF

Alternate Dispute Resolution: In-Sem Notes ========================================== Contents {#contents.TOCHeading} ======== [Alternate Dispute Resolution: In-Sem Notes 1](#alternate-dispute-resolution-in-sem-notes) [Introduction 2](#introduction) [The nature of civil disputes: 3](#the-nature-...

Alternate Dispute Resolution: In-Sem Notes ========================================== Contents {#contents.TOCHeading} ======== [Alternate Dispute Resolution: In-Sem Notes 1](#alternate-dispute-resolution-in-sem-notes) [Introduction 2](#introduction) [The nature of civil disputes: 3](#the-nature-of-civil-disputes) [Jurisprudential Theories 3](#jurisprudential-theories) [Therapeutic Jurisprudence 3](#therapeutic-jurisprudence) [Economic Agency 4](#economic-agency) [Why are these theories relevant to ADR? 4](#why-are-these-theories-relevant-to-adr) [Context 4](#context) [Australian Developments 5](#australian-developments) [The Expectations of Lawyers 7](#the-expectations-of-lawyers) [Determinative Process 11](#_Toc187315869) [Facilitative Processes 11](#_Toc187315870) [Negotiation Options 11](#_Toc187315871) [New Developments 11](#_Toc187315872) [Modern Lawyering 11](#_Toc187315873) [Arbitration -- Erica Williams Guest Lecturer 11](#arbitration-erica-williams-guest-lecturer) [Overview of Arbitration 11](#overview-of-arbitration) [Types of Arbitration 13](#types-of-arbitration) [Drafting Arbitration Clauses 14](#drafting-arbitration-clauses) [Arbitration Procedure 14](#arbitration-procedure) [Enforcing Arbitration Agreements and Awards 15](#enforcing-arbitration-agreements-and-awards) [Case Appraisal 17](#case-appraisal) [Land Court Queensland 18](#land-court-queensland) [National Sports Tribunal 19](#national-sports-tribunal) [Key features of case appraisal 19](#key-features-of-case-appraisal) [When and why is case appraisal preferable to a trial 19](#when-and-why-is-case-appraisal-preferable-to-a-trial) [FCFCOA Judicial Settlement Conferences 20](#fcfcoa-judicial-settlement-conferences) [Some fact scenarios to consider 20](#some-fact-scenarios-to-consider) [Conciliation - Guest Lecturer Shiv Martin 21](#conciliation---guest-lecturer-shiv-martin) [Facilitative (Mediation) 22](#facilitative-mediation) [Determinative/Investigative 22](#determinativeinvestigative) [Ways of Resolving Conflict 23](#ways-of-resolving-conflict) [Overall Stages of Conciliation 25](#overall-stages-of-conciliation) [Current Definition and Practice 26](#current-definition-and-practice) [In the Context of Regulatory Organisations 27](#in-the-context-of-regulatory-organisations) [Further 28](#further) [Final Notes 29](#final-notes) [Risks of Conciliation 29](#risks-of-conciliation) [Mediation 29](#mediation) [History of mediation in Australia 32](#history-of-mediation-in-australia) [Models of Mediation 33](#models-of-mediation) [Some fact scenarios to consider 34](#some-fact-scenarios-to-consider-1) [Mediation Cont (to be restructured) 34](#mediation-cont-to-be-restructured) [Conflict Management Requirements 35](#conflict-management-requirements) [The Phases of Conflict 36](#the-phases-of-conflict) [Vital Elements of Mediation 36](#vital-elements-of-mediation) [Within the Mediation Model 36](#within-the-mediation-model) [Accreditation 36](#accreditation) [Process: What happens after decision to mediate? 37](#process-what-happens-after-decision-to-mediate) [The Federal Court Experience: 37](#_Toc187315908) [Process Fundamentals 37](#process-fundamentals) Introduction ------------ Can have 2 of 3: Fast, Cheap, Good Women take 45 mins to re-engage their prefrontal cortex; Men can take up to 2 hours Conflict dictionary definition affects beliefs and ideals Consider conflict v combat 'Positions' cf 'interests': positions usually are harder to achieve and have limited options for solutions, while interests are harder to articulate but have more options for solutions. Remember paper folding demonstration Most powerful person in ADR is the person who can say yes Epistemic trust  Best way to eat an elephant one bite at a time Distinguish 'judge lens' from client lens; judge lens = court lens = practitioner's lens ('just in case' lawyers end up in court) Currency of court is evidence The less resources you have (financial, intellectual etc), the more likely you will have a legal dispute Lawyers as First Responders Lawyers are trained at polarised thinking Lawyers are still so good at dialling conflict into combat. Combat is: - One Dimensional; Binary Thinking; Physical - Still informs our world view through - Expectations - Physiological response - Language (eg. Talk about conflict as if it is combat) -- informs perceptions - Is an embedded way to deal with conflict. But it is not necessary in legal conflict in 2025. Resolution: - What is closure? - What are the ways to secure it? - Is the cost of "being right" worth it? - Is resolution an access to justice issue? - Fundamental - Majority of disputes do not need lawyers - 5% of matters go to trial ### The nature of civil disputes: Professor Dame Hazel Genn 'Understanding civil justice', 1997 *Current Legal Problems*, vol. 50, no. 1: *Civil disputes 'comprise a rag‑bag of matters and participants:* *There are disputes relating to the performance or non‑performance of contracts involving businessmen suing each other, individuals suing businesses, and businesses suing individuals. There are claims for compensation resulting from accidental injury in which individuals sue institutions. There is the use of the courts by lenders who realize their security by evicting individual mortgage defaulters. Civil justice also involves attempts by citizens to challenge decisions of central and local government bureaucrats, a rapidly growing field that includes immigration, housing, mental health, child welfare, and the like.... Finally, there are the acrimonious and often heartbreaking struggles between men and women following the breakdown of family relationships as property and children become the subject of legal dispute.'* Jurisprudential Theories ------------------------ ### Therapeutic Jurisprudence - Arose in context of criminal law but apt in all jurisdictions involving interpersonal (non-commercial) conflict - Often particularly helpful in family law and wills and estates. - Understands that a "legal outcome" is not always a "just outcome" - There is a context to the conflict. It is the ADR which can unlock this context. - Process and subsequent closure can allow for psychological repair. - Explores the "healing power of the law" and its intersection with other disciplines such as psychology (POP) - Law is not therapy, but a therapeutic jurisprudential lens can help resolve. - A means of examining the law and its role in society as something "social" rather than purely legal - Recognises there is room for more than just a legal outcome and - a purely legal outcome (where there is a winner and a loser) may not be conducive to determinations of matters involving interpersonal conflict - Impact reflected in discretionary nature of decisions (which can make doctrine of precedent difficult in an already complex area -- "each case turns on its facts") - Why understanding therapeutic jurisprudence matters ### Economic Agency - Significant portion of legal disputes involve money - The tangible amidst the intangible - Economic Agency theory: - recognises each of the parties in a dispute have incentives to behave in the way that they do and those incentives are inextricably linked to the economics of the outcome of the proceedings (and the economics of the proceedings themselves) - recognises that rational and often irrational behaviour coexists with arguments around who will accept what to end a dispute - suggests there is a strong incentive to be better off and where there is a separation from control over the outcome, perverse incentives arise - recognises the unequal bargaining power in most disputes - While the theory encourages the careful consideration of the economic outcome (and encourages avoiding bringing unrealistic expectations to the court) even careful consideration cannot change the range of possible outcomes and the costs associated with pursuing them - The best persons to determine a matter are those involved in it (the parties) rather than external parties (the court) - ADR -- mediation, arbitration, conciliation, collaboration - Why understanding economic agency theory matters ### Why are these theories relevant to ADR? Context ------- - Preventative - Transactional - Dispute focussed - Bespoke - Essential to functions of judicial system and courts - The Rise of ADR: - Essential to functions of judicial system and courts - ADR has been a key focus of courts reform and case management agendas in common law jurisdictions since the 1990s. - English Jurist Lord Woolf conducted a review of the civil justice system in England and Wales and his *Access to Justice* report ("The Woolf Report") published in April 1997 was the catalyst for the development of ADR in England and reform of civil courts in many common law jurisdictions including Queensland. - ADR is essential to justice system: *Cowl v Plymouth City Council \[2001\] EWCA Civ 1935:* - "The defects I identified in our present system were that it is too expensive in that the costs often exceed the value of the claim; too slow in bringing cases to a conclusion and too unequal: there is a lack of equality between the powerful, wealthy litigant and the under resourced litigant. It is too uncertain: the difficulty of forecasting what litigation will cost and how long it will last induces the fear of the unknown; and it is incomprehensible to many litigants. Above all it is too fragmented in the way it is organised since there is no one with clear overall responsibility for the administration of civil justice; and too adversarial "even in disputes between public authorities and the members of the public for whom they are responsible, insufficient attention is paid to the paramount importance of avoiding litigation whenever this is possible. Particularly in the case of these disputes both sides must now be acutely conscious of the contribution alternative dispute resolution can make to resolving disputes in a manner which both meets the needs of the parties and the public and saves time, expense and stress... The courts should then make appropriate use of their ample powers under the CPR to ensure that the parties try to resolve the dispute with the minimum involvement of the courts". ### Australian Developments ***Civil Dispute Resolution Act 2011 (Cth)*** - Commenced 1 August 2011 - Encourages parties to take genuine steps to resolve a dispute before commencing certain legal proceedings in the Federal Court and Federal Circuit and Family Court. - Objectives of the Act: - ensure that, as far as possible, people take **genuine steps** to resolve disputes before certain civil proceedings are instituted - promote a move away from an adversarial approach to litigation - improve access to justice by encouraging early dispute resolution. - Costs consequences for non-compliance - Applies to all general federal law matters in the Federal Court of Australia and the Federal Circuit and Family Court, unless the proceeding is excluded. - Excludes proceedings relating to a civil penalty or criminal offence, appeals, ex parte proceedings and proceedings involving a vexatious litigant and proceedings under the *Family Law Act 1975*, the *Migration Act 1958*, the *Native Title Act 1993* and the *Fair Work Act 2009*. #### Commonwealth Attorney General's Department: - Significant dispute resolution information - - National Alternative Dispute Resolution Advisory Council (NADRAC), formed to give ADR related policy advice to the Attorney-General, operated between 1995 and 2013. - The [NADRAC National Principles for Resolving Disputes](https://www.ag.gov.au/sites/default/files/2020-03/Your%20Guide%20to%20Dispute%20Resolution.pdf) were published in 2012 and - focus on using ADR instead of going to court---and still using ADR even if proceedings are commenced; - provide information about how ADR aims to work so that parties know what to expect if you choose to use ADR. - Identified 7 National ADR principles ([www.nadrac.gov.au](http://www.nadrac.gov.au/)): 1. Self-responsibility is the first step - It is uncomfortable and legally risky. 2. Early resolution is good resolution - Usually, but an early resolution is not necessarily a good resolution in cases of power imbalance 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 ('Mundy Report') \~ 2014 \|\| #### \|\| 2024 Report on the National Legal Assistance Framework \|\| - **Scope of the Inquiry:** examine the costs of accessing justice services and securing legal representation, and the impact of these costs on access to, and quality of justice. - Have regard to: 9\. alternative mechanisms to improve equity and access to justice and achieve lower cost civil dispute resolution, in both metropolitan areas and regional and remote communities, and the costs and benefits of these, including analysis of the extent to which the following could contribute to addressing cost pressures: a. early intervention measures b. models of alternative dispute resolution c. litigation funding d. different models of legal aid assistance e. specialist courts or alternative processes, such as community conferencing f. use of technology, and g. expedited procedures 10\. reforms in Australian jurisdictions and overseas which have been effective at lowering the costs of accessing justice services, securing legal representation and promoting equality in the justice system - Key Issues: - Civil justice system is too slow, too expensive, too adversarial - Many parties resolve disputes in the shadows of the court - Many are deterred from using low cost and informal DR mechanisms by fears regarding costs and uncertainty about where to obtain assistances - The interests of lawyers and clients do not always align - More needs to be done by courts to avoid unnecessary expense - The adversarial behaviour of parties and their lawyers hinders resolution - Court fees should be more systematic - Disadvantaged Australians are more susceptible to, and less equipped to deal with legal disputes. More resources are required - Funding for legal assistance provides should be redirected ### The Expectations of Lawyers - Act -- legislation which gives court power to make enforceable orders - Rules -- Binding to extent that a judicial officer does not set them aside. Operational provisions which sit alongside legislation - Regulations -- usually regulations made to adopt provisions linked to other legislation - A consistent message to prioritise ADR provided to practitioners through references to ADR: - ***Solicitors Conduct Rules 2023*** - ***Rule 4:* Fundamental Duties of Solicitors** - ***Rule 7:* Communication of Advice** - ***Uniform Civil Procedure Rules (Qld)*** - ***Regulation 5:* Philosophy overriding obligations of parties and court:** - 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. - ***Part 4* Alternative Dispute Resolution Processes** - Focus on Mediation and Case Appraisal; referral and "reporting" mechanisms (note confidentiality limit on depth of reported content, just need to know a serious/genuine attempt) - ***Regulation 321* Proceedings referred to ADR process are stayed** - Subject to an order of the court, if a dispute in a proceeding is referred to an ADR process, the dispute and all claims made in the dispute are stayed until 6 business days after the report of the ADR convenor certifying the finish of the ADR process is filed with the registrar. - ADR in Qld Courts - - Federal Court - ***Civil Dispute Resolution Act (Cth) 2011*** - Federal Circuit and Family Court of Australia - ***Central Practice Direction*** - ***Family Law Act s 60I*** - Other Courts and Tribunals QCAT - - Commonwealth AGD - Queensland Government resources - - ***Federal Court Rules 2011 Part 28* Alternate Dispute Resolution** - ***Rule 28.01*** - ***Rule 28.03*** - ***Central Practice Direction General Federal Law (FCFCOA)*** - ***FCFCOA Act*** - Overarching Purpose FCFCOA Act -- to facilitate the just resolution of disputes a. according to law b. as quickly, inexpensively and efficiently as possible - ***Central Practice Direction* Family Law Case Management** - First court event, then Interim hearing (if required) then Dispute resolution, where it will either be agreed and resolved, or go to Mention, where it will either be agreed and resolved or go to Compliance and readiness hearing where it will either be agreed and resolved, or go to Trial Management hearing (if required) then Final Hearing 23. Unless exceptional circumstances exist, within 5 months of the date of commencement of a proceeding, the parties will be required to participate in Dispute Resolution. - *Ups the ante* - *Lawyers and clients need to start thinking about solutions early in the process (not just closer to litigation when they are tired/have litigation fatigue)* 24. For proceedings involving family violence and safety concerns, consideration will be given to whether Dispute Resolution is appropriate and whether measures can be implemented which will facilitate Dispute Resolution occurring as safely as possible. Such measures may include Dispute Resolution being conducted electronically or in separate rooms. - private mediation; and/or - private, legal aid facilitated or community-based FDR; and/or - arbitration with the consent of the parties. ***6.26*** If the Court is satisfied, having regard to the means and resources of the parties, that it is appropriate for the parties to participate in court-based Dispute Resolution, a matter will be listed on a date within 5 months from the date of filing for: a. a Conciliation Conference; or b. a Judicial Settlement Conference; and/or c. a Family Dispute Resolution Conference pursuant to section 13C(1)(b) of the Family Law Act with a Registrar (as a Family Dispute Resolution Practitioner (FDRP)) and, where appropriate, a Court Child Expert (as a Family Counsellor). - ***Section 60I Family Law Act*** - Family Dispute Resolution - Family Dispute Resolution Practitioners ('FDRP's; ***s 60I*** certificate) - ***Family Dispute Resolution Regulations*** - Family Relationships Centres \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_  - Process, rather than an event - What if lawyers become really good at ADR? court judgements on more complex cases (whether through legal complexity or inability to compromise) and more funding to allow these cases to be heard. - Listen to recording to note extra info re: above types of ADR if not gone into more depth later. Arbitration -- Erica Williams Guest Lecturer -------------------------------------------- ### Overview of Arbitration - Private process where disputing parties decide whether 1, 3 or 5 arbitrators make a final and binding decision after receiving evidence and hearing arguments from the parties - This is all because the parties have agreed to arbitration - Party agreement and party autonomy is fundamental to arbitration - Arbitration agreement is usually term of the contract - Been slower to develop in Australia (cf Singapore, Hong Kong, Paris, London, NY) but Aus does hold its own (See ACICA.org report 2020) - Industries which use arbitration are usually high-value disputes: - Energy and resources - Construction and infrastructure - Investor-State arbitration (not just commercial) - Key features: - Enforceability - New York Convention... - Cf Enforceability of Foreign Judgements - Confidentiality - Don't need to have media or publishing - This element is key for infrastructure disputes / government disputes - Some arbitrations have to be disclosed for ASX in their reports (eg. Kingsgate - investor/state dispute between Aus company and Thailand) - Parties choose own arbitrator - Might need specific skillset - Neutral form - More informal and flexible -- can be more efficient - Party autonomy - Limited right of appeal / grounds for appeal - Negatives: - Costs - Who are the parties? - Eg. Subsidiaries / parent company? - Risk for fractured dispute resolution - - Arbitrator's powers more limited - Arbitrators must allow parties equal and reasonable opportunity to present their case (eg. extensions of time generally have to be allowed) - Speed - Parties can choose how fast or slow they want to go - Limited rights of appeal / grounds for challenge - Only about 5 grounds to resist the enforcement of the award - Aus is pro-arbitration jurisdiction and most courts will find a way to uphold the award - The Australian Context: - ***International Arbitration Act 1974 (Cth)*** implements: - NY Convention -- ***Schedule 1 IAA*** - UNCITRAL Model Law (more detail re: how to implement NY Convention) -- ***s 16 IAA*** - ICSID Convention -- Investor/State -- also adopted in ***IAA*** - Domestic Commercial Arbitration Acts in each state and territory reflect the Model law - This allows cross-referencing state and international jurisdictions for precedent - Federal and State Courts have specialist arbitration lists - ACICA - International and Domestic Arbitration upon agreement - Resolution Institute - Even if not agreement initially, still have to agree before proceeding ### Types of Arbitration #### International - If not all parties are in Aus #### Domestic - If both parties are in Aus #### Institutional - Doesn't mean institution decides the matter - Provides admin assistance to the matter and rules which the parties can use (guidebook as to how to conduct arb proceeding) - Eg. If parties can't decide on arbitrator, Fix arb fees - Also, for example, the Singapore International Arbitration Centre ('SIAC') can scrutinise arbitration awards. #### Ad hoc - #### State - Investor-State: - Not that common in Australia - Bilateral or Multilateral Investment Treaties and some Free Trade Agreements - Aus involvement so far: - Phillip Morris case = first case filed against Aus. - Only made it as far as jurisdictional challenge - 2016 - P Morris brough claim against Aus re: intro of plain packaging tobacco legislation - Knew dispute was coming when restructuring into Hong Kong - Court held claims inadmissible as Phillip Morris restructured for primary or main purpose of relying on bilateral teade agreement, and Aus didn't have jurisdiction - Clive Palmer's Suit of claims - SEE RECORDING - Zeph investments - Potential Future Investor-State Disputes - - - SEE PPT QR code / link - Australian Claimants in ISDS Matters: - - - - Reinstate mining license bc didn't have money - - Tiger prawn farm Clifford Chance Perth usually represent Aus parties in IS Disputes - and increasingly DLA Piper #### Private (commercial) - ### Drafting Arbitration Clauses - Keep it simple -- no room for creativity, use a model clause (eg. ACICA Model Arbitration Clause see on slides) - Key elements: - Broad definition of dispute - Identify institution / rules - Seat (some people think it means 'place' but it is really the juridical home of the arbitration. The court of the seat is the relevant court if you need court assistance) - Language -- used to be particularly relevant if other party was Chinese and SETAC applied (if you didn't specify language then the arb would by default be in Chinese) has since been changed, due to backlash. - Number of arbitrators - No need for exclusive ### Arbitration Procedure - To commence arbitration, file a notice of arbitration. - Rules will say what you need to include (see ACICA doc for eg.) -- they will vary per institution - Institutions might include: ACICA, SIAC, ICC (most expensive so used for high-value disputes), HKIAC, LCIA (one of oldest int arb institutions), Resolution Institute - Expedited Arbs have different requirements (eg. submit statement of claim w notice of arb) - Charge different fees - Once received notice of arbitration, have to provide response within \[28 days\] - If no response, arb can be appointed and proceeded without you - Claimant still has to prove its case, whether you respond or not. - Bringing proceedings against correct party? Can respond saying 'hey its not me'. - Issued to correct address? One ground for resisting enforcement is that you have not been properly notified (Victorian case on this to be told about later) - Any pre-requisites (eg. mediation first)? - Parties must appoint arbitrator \[ACICA: within 40 days of receiving notice\] - ACICA asks to take into consideration diversity there are resources for finding this - Conflicts of interest? (look at IBA Interests -- traffic light conflict system) #### Arbitral Process - Case Management conference / preliminary conference to decide a process - Might ask each party to write and submit their preferred process -- up to parties to decide - Could do memorial style (narrative-style) over court-style process - Example memorial SoC on ACICA website (recent) - May request more info, need to explain why material to case, opportunity to reply etc then to arbitrator to decide based on each objection. - Virtual or in-person - Decide if secretary or not - PO1 Document Foundation of parties' agreement as to how the arbitration process with be run. - Requests for extensions of time - Procedural fairness -- more likely than not to allow for extensions unless unreasonable - Hearing and at the end an award - State place of arbitration (seat) - Wet ink signature required? ### Enforcing Arbitration Agreements and Awards - 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 - - Argued: claim under ACL and not suitable for arbitration. Also franchising code prohibits arbitration for franchising disputes where the agreement provides for...SEE RECORDING. - Court disagreed - - "Each party irrevocable and unconditionally submits to arbitration in accordance w the arbitration guidelines of the law institute of Victoria" - Didn't exist and parties agreed it was 'pathological' (invalid) - Thought court could assist, but court wouldn't order parties to agree on something they haven't agreed on - Ordered to go away and come back with a new agreement to argue. - Shows courts are pro-arbitration - - Any dispute shall be settled by amicable negotiation between two Parties. In case both Parties fail to reach amicable agreement, all disputes out of connection with the contract shall be settled by the Arbitration Committee at Singapore.... - Arb Committee at Singapore did not exist - If another institution agreed, they could arbitrate... - Now ICC (Int Chamber of Commerce) has changed rules to say no-one but ICC can administer their rules - SEE SLIDE - - "the parties agree to refer the dispute to the Australian Commercial Disputes Centre for final settlement by [single arbitrator] appointed in accordance with the Rules of the ACDC...." SEE SLIDE - The court [may] only refuse to enforce an award if: - A party was under some incapacity at the time the arbitration agreement was made - Arb agreement not valid under the law of the agreement - Party not given proper notice of the arb proceedings or was otherwise unable to present case - Husband got notice and not wife, who was the relevant party 2.7mil \$. Address not suitable. ASK - Award deals with subject matter beyond scope of the arb agreement - Composition of arbitral tribunal not in accordance with arbitration agreement - Award not yet biding on parties or has been set aside in law of country in which made - The subject matter is not capable of settlement by arbitration - To enforce the award would be contrary to public policy - Award affected by fraud or corruption - Breach of rules of natural justice - Incl. Equal/Fair chance to be heard - How to enforce an award: - Provide award to court (translated if needed) - SEE SLIDE - 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 an application allowed, award debtor to be given 28 days notice to oppose the order enforcing the award. - Following evidence that award debtor was aware that - SEE SLIDES QR CODE How to pursue a career in arbitration - Internships (see NSW internships and ACICA internships) SEE GUIDE - Associate or Tipstaff to Arbitration List judges (Roger and Sarah Derrington on FCA, in QSC -- Bradley J and other Commercial List judges) - Tribunal Secretary positions (similar to judges associate but very hard to come by -- Melbourne, Michael X, Doug Jones in Sydney) ACICA tribunal secretary courses (also Hong Kong more frequently). - Law Firm clerkships: - Corrs - Ashurst - HWL Ebsworth (Smaller) - Clayton Utz - Herbert Smith Freehills - All the big ones - Can do a diploma - Can do fellowship course - Chattan Institute (?) - FCIR Case Appraisal -------------- - An ADR process available AFTER court proceedings have been commenced - ADR option in civil disputes before the Qld Supreme, District and Magistrates Courts - Involves a third party making a non-binding decision based on the evidence, submissions and relevant legal considerations. Decision becomes binding only if all parties consent to it. - UCPRs set out process for referral to case appraiser - court order refers the mater to case appraisal and - either appoints a specific case appraiser or provides for the parties to select the expert - sets out the dispute referred and provides information about the pleadings, statements, other material before the court - confirms the period within which the case appraisal must take place - identifies the costs/likely costs and how and when they are to be paid (***UCPR r 334***) - Matters can be referred to case appraisal even where mediation has been attempted - 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* - Case appraiser: - can ask ANYONE for information (associated costs to be agreed by parties or subject of court order) (***UCPR r 337***) - [has same authority as the court making the referral but can only make a decision that the court could make in the case (and cannot punish for contempt) (***UCPR*** ]***r ***[)] - has same power to make a costs order as the court (***UCPR r 340***) - Parties have same appearance rights as before the court - A person (witness) can be subpoenaed to attend a case appraisal -- by order of the court (***Civil Proceedings Act 2011 s 46(2)***) but cannot be compelled to answer a question/produce a document that they would not be required to do before a court - Case Appraiser has authority of the Court in the event of non-compliance - Decision is reduced to writing and provided to the Court -- need not give reasons and can cease process at any time (***UCPR r 338***) - When a decision is made the case appraiser must place the decision in a sealed container marked *"not to be opened without an order of the court"* and file the container with the court. Can only be opened pursuant to a court order (because parties agree to accept the decision or following a trial (***UCPR r 342***) - Decision enforceable only if parties apply for order to give effect to decision: Court can make any order it considers appropriate (***Civil Proceedings Act s 51(3)***). - Parties are taken to accept the decision if objection is NOT taken (***UCPR r 343***) but still need to secure an order. - Same power to make a costs order as the court (***UCPR r 340***) - Trial remains an option for parties who are not content with the decision -- costs at risk if judge's decision is less favourable than case appraiser's - Technical expertise of case appraiser is crucial - Retired judges - Experienced Barristers or Silks - Legalistic and strong evidentiary focus - Also available (and commonly used) in - Land Court - National Sports Tribunal ### Land Court Queensland - Case appraisal is only available in relation to conduct and compensation agreements (CCA) for land access under the ***Mineral and Energy Resources (Common Provisions) Act 2014***. - A convenor is appointed from a panel of experts -- legal, valuation, resources, planning experience (ie. Not all legal experts) - Can be crucial and helpful in this space - UCPR applies if Land Court Rules inadequate - Land Court Rules: ***Division 4* Alternative dispute resolution** ***s 15* Land Court ADR panel** \(3) The court may refer either of the following matters to alternative dispute resolution by a convenor--- \(a) **a matter that** is not before the court but **may be brought before the court**; \(b) a matter that is before the court and was started other than under part 2 of the Act.... \(5) In this rule--- alternative dispute resolution, of a matter, means \(a) for a matter mentioned in subrule (3)(a)---a facilitative process, including, for example, mediation, conciliation, **case appraisal** and facilitated negotiation; or \(b) for a matter mentioned in subrule (3)(b)---a relevant ADR process. relevant ADR process see section 27C(5) of the Act. \[refers back to Civil Proceedings Act but **excludes case appraisal**\] - Incentive for complex disputes to avoid proceedings all together. ### National Sports Tribunal - Non-binding **oral** opinion based on the evidence and statement of the parties. Can request a written decision but cannot be used in any proceedings before the tribunal - Tribunal member can then assist parties to negotiate an agreement. - hybrid: gives potential decision in form of opinion and then facilitate negotiated/mediated outcome - Keeps all doors to agreement open (makes calls on sticking points) - This is good because often want amicable outcome and maintaining future relationships (team players, animosity toward employing clubs). - Sport is high stakes for individual, team and for the nation (associated income). - Most suitable for disputes that are not complex, contained, have no witnesses and no lengthy evidence - No witnesses can be called - Decision can be about facts and/or procedure for future conduct of matter ### 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 - Client wants to go ahead to trial with poor prospects (last resort) - Privacy (huge driver for any ADR) - Time pressure - Why parties might change their mind during the course of litigation: - Exhaustion - Life is on hold - Wane in confidence due to experience with the court system ### FCFCOA Judicial Settlement Conferences - Convened by judge or other judicial officer -- not the trial judge - Convened when the next step is a trial (last last effort to resolve the issue prior to turning the corner) - Purpose is to finalise matter including by challenging and evaluating the expectation of parties prior to a trial -- format and conduct is up to the Judge - Gives parties exposure to court room and judge - Benefit: their day in court, without trauma of X-examination etc. - 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 - Eg. "If I were the judge in the matter, I would..." - Consent orders made at conclusion where agreement is reached - Settlement rates are about 50% ### Some fact scenarios to consider - Tate gallery in London so visitors could see view of London landscapes - Could also see into apartment of neighbouring buildings (Neo) - Did this amount to a nuisance - Top floor of Tate Museum gave people view into both commercial and private use of building next door. - Often many people using viewing platform - Distance between buildings was 34m - Gallery was open 10-5:30; 10-7pm - Claim founded in CL nuisance claim - Tech issues: - Intrusion on privacy of residents - Whether this intrusion amounted to a nuisance - On appeal held if principles of CL applied, the claim would succeed (material intrusion on privacy) - But appeal dismissed bc overlooking alone could not constitute nuisance. - Arrived on boat without valid visa - Detained in custody - Sought judicial review for detention in custody - Set aside decision of minister - Before minister able to, new provision inserted into migration act - New provision meant Ps remained in detention and could not be released until either removed or provided visa - Prevented Court from ordering release - Did that new division violate constitution by giving executive power to preclude court - No dispute re: facts or \_\_ - Argued provisions invalid bc they usurped powers of the Cth - Ps said they detention was punitive and therefore only permitted if exercise of judicial function. - HCA found relevant sections to be valid and Ps detention was not punitive. Just bc they had the threat of deportation did not make it punitive Conciliation - Guest Lecturer Shiv Martin ----------------------------------------- Information Comm Office RTI, Privacy - Balance parties' autonomy and safety with public interest and many competing factors. Conciliators have an ethical framework. Often have to make discretionary decisions. - Not all conciliations are confidential some outcomes/conciliations are published - Note OACD dispute resolution for complaints about big companies. These are published that complaint has been made against X (big company). The nature of the complaint is published. Exact process confidential but Conciliator publishes statement of what was agreed (not necessarily specific)/decision etc) - Conciliation v Mediation time frames: - 3^rd^ party organisations stipulate time frames for conciliation - Cf Mediation where the mediator is paid for as long as the parties want to pay for them - 2021 ADRAC report (quantitative and qualitative data collected) tried to come up with a definition - Over 23,000 conciliations occur each year in Australia - Still not a proper definition or standard for conciliation - Independent Third Party Intervention Modes in Conflict: 1. Determinative - Judge, Tribunal 2. Facilitative - Mediators - Assist with communication, ensure everyone has a chance to speak - Listen and be Heard - Don't impose solutions 3. Informative - Ombudsman Officers - Gives information / stats - Leaves people with information as to what to decide - Educate, doesn't aid in reaching an outcome 4. Evaluative - Conciliators - Eg. Conciliator at RTA - Gives information as to entitlements/rights - Discuss with other party - Have conciliation conference (could be phone call to bring both sides together) - Usually will give both parties information beforehand - Facilitate conversation w each party about what the information - Give parties information re: legislation and regulations - Ask parties how they can reach a desired outcome - Can have individual conference with parties - Reality check with each party - Not making decision but evaluative strengths and weaknesses of their decision - Not telling people what to do, but leave it just short of that - "In light of legislation and cases like this I've seen before, this is how its looking like it will go..." - Gives extra push towards a settlement, but still leaves space for creativity and for parties to decide their outcome - Can ensure outcomes are within reasonable expectation of the industry but still maintains party decision-making - Depends on organisation and type of dispute as to whether people have legal representation (sometimes other representation, no representation, union rep etc, opportunity to have advice beforehand). Often legal rep might increase costs to a point which makes pursuing a low-cost/small dispute redundant. Some organisations require leave for representation or don't allow it -- This is for reasons of fairness and maintaining balance. - Shuttle conciliations / Negotiations asynchronous -- not at the same time. ### 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 A diagram of conflict with orange circles and green arrows Description automatically generated *Reference: **\"The Crossroads of Conflict: A Journey Into the Heart of Dispute Resolution\" (2006) [Kenneth Cloke]:*** #### 1. Interest-Based Conflict Resolution: - Focuses on the parties\' interests and seeks to identify common ground and shared interests. - Parties involved in the conflict work together to find a solution that meets everyone\'s needs and interests. ###### ###### Case Studies: - [Resolution Approach:] - The tribunal facilitator adopts an interest-based approach by bringing both parties together to explore their underlying interests. - [Key Interests:] - Gardening group: Maintaining green space for the community and supporting local food initiatives. - Business owner: Increasing foot traffic and providing a pleasant outdoor seating area for customers. - [Outcome:] - Through facilitated discussions, both parties agree to redesign the shared space to accommodate seating along the perimeter while preserving a central area for community gardening. The business owner agrees to sponsor the garden's upkeep in exchange for small signage crediting their support. - [Result]: - Both parties\' core interests are met, fostering collaboration and strengthening community ties. #### 2. Rights-Based Conflict Resolution: - Focuses on the legal rights of the parties involved in the conflict and upholding the law and ensuring that each party\'s legal rights are respected. - Also consider public interest and open justice (leading to consistency, community expectation management) ###### Case Study: - [Resolution Approach]: - The tribunal focuses on rights-based conflict resolution by assessing the legal frameworks governing employment rights and contractual obligations. - [Key Considerations]**:** - Examination of the employee's contract, performance records, and the employer's adherence to disciplinary procedures. - Review of relevant employment legislation and case law to ensure procedural fairness and adherence to public interest principles. - [Outcome:] - The tribunal determines that the dismissal process was flawed as the employer failed to follow mandatory procedural steps. The employee is awarded compensation for wrongful dismissal, and the employer is directed to update internal procedures to align with legal requirements. - [Result:] - The tribunal upholds legal rights, reinforces fair employment practices, and promotes consistency and transparency in workplace dispute resolution. #### How do we determine whether an interest-based or rights-based approach is appropriate? - Hard to know until you've started the process - Generally, when there is a significant power imbalance, then probably not pure mediation, more so conciliation. #### How might the process differ between each organisation? Can you think of some organisations that practice conciliation? - Crime - Family - Other civil - AFCA (finance, insurance -- enormous amount of conciliation) - Building and Construction - Human Rights Commission (a lot of work here is conciliation) - Religious/Faith-Based Sector  ### Overall Stages of Conciliation - Intake and preparation (includes information sharing, may include a jurisdictional assessment, identifying correct parties). - Conciliators opening/introduction - Parties opening/ introduction - Agenda or list of issues (Scope of conciliation) - Joint discussion -- information sharing between parties - Private sessions -- confidential one on one discussions with conciliator - Joint negotiation and agreement forming - Conciliator to confirm how the agreement fits within legal/regulatory framework and make appropriate records. ### Current Definition and Practice - ADRAC November 2021 *Connecting the Dots* [34f2d0\_6a05f25a238349a79b23b2dd64efc27e.pdf (adrac.org.au)](https://www.adrac.org.au/_files/ugd/34f2d0_6a05f25a238349a79b23b2dd64efc27e.pdf) - **More than 23 000 conciliations each year across over 150 agencies (103 of which include a legislative reference to conciliation including the Constitution)** 1. **Lack of clear definition:** The report acknowledges the absence of a universally agreed-upon definition for \"conciliation\" in Australian legislation. 2. **Focus on the conciliator\'s role:** The report emphasizes the conciliator\'s function as distinct from a mediator\'s. 3. **Aim for clarity and effectiveness:** ADRAC\'s definition and emphasis on the conciliator\'s role are part of their recommendations to improve the clarity and effectiveness of conciliation processes in Australia 4. **Not a single source of truth** - Conciliation in legislation - Conciliation is provided for as a way of resolving disputes - In some cases, the parameters of conciliation are specified - The role of the conciliator - The requirement for a notice is included - However there is no clear statutory definition of what conciliation actually is. - Long form definition of conciliation - *Conciliation is a facilitative dispute resolution process in which the disputing parties are brought together and, with the assistance of the conciliator, have discussions with the conciliator jointly or separately about key issues, for the purpose of resolving their dispute. The process is conducted under and in accordance with legislation or other binding rule which places obligations on conciliators and the disputing parties to comply with the norms and standards required by that context. Conciliations are non-determinative. If the process does not achieve resolution, the matter typically proceeds to a determinative process, either that legislated or governed by other binding rule. Conciliators may use their specialist knowledge and experience to evaluate each disputing party's position, to express their own opinions, to offer advice, and to identify and clarify issues with a view to assisting the disputing parties to resolve their dispute. \~ **ADRAC Connecting the Dots, Page 11*** - ***[A definition that preserves diversity ]*** - ***ADRAC Connecting the Dots* 2021 defines conciliation as**:  - A simple definition? - A hybrid dispute resolution process, that focuses on the interests and rights of the parties, to arrive at a consensual outcome that accords with the goals of an overarching system. - System objectives: compliance, regulation, safeguarding, public interest, efficient resource management - What other processes fall within the definition of conciliation? ### In the Context of Regulatory Organisations - Do Regulatory Organisations conduct conciliations? - What are the regulatory benefits of conciliation practice? #### The Regulatory Pyramid The model was first put forward by Braithwaite in J Braithwaite, To Punish or Persuade: Enforcement of Coal Mine Safety (1985). [Regulatory pyramid infographic \| Aged Care Quality and Safety Commission](https://www.agedcarequality.gov.au/media/94534) A diagram of a pyramid Description automatically generated ### Further - What are some indications that the dispute resolution process is not a conciliation process? - Where the third party makes a determination - What about conciliations where the conciliator may issue directions to produce evidence? - What about regulatory bodies/ Ombudsman organisations that may use information gathered during conciliations to make recommendations? - Is resolution the aim of Conciliation? - Conciliators are system representatives - The goal is not simply resolution or self-determination of the parties - The goal is the resolution of the dispute, by agreement, in a way that is consistent with the overarching system (legislation, rule, code) - Office of the Health Ombudsman information sheet (QLD): [Conciliating your complaint (oho.qld.gov.au)](https://www.oho.qld.gov.au/assets/uploads/Conciliating-your-complaint.pdf) - **Public interest matters:** A public interest matter is an issue involving the health and safety of the public. If one is identified, the conciliator is required to report the matter to the Health Ombudsman. Conciliation may be ended if a public interest matter is identified. Your conciliator will explain this to you in more detail at the start of conciliation. #### Zones of Intervention - Any organisation that offers parties to a dispute the opportunity to informally settle a dispute without opting for a determinative process is likely practicing some form of conciliation process.  ### Final Notes In summary, conciliation is any process by which a dispute resolution organisation (Court, Tribunal, Regulatory Body, Complaints Management Agency) seeks to resolve conflict without a final determination by a third party. The conciliation process is run in accordance with the following objectives: 1. Encouraging understanding and respect between parties 2. Improving communication 3. Rebuilding trust 4. Educating and encouraging voluntary compliance with regulatory frameworks 5. Using agency resources efficiently 6. Public interest check on outcomes **Read more on my blog -- scan the QR code:** A qr code with black squares Description automatically generated **Stay in touch** [Email: contact\@shivmartin.com](mailto:[email protected]) **Social: www.linkedin.com/in/shivmartin** ### Risks of Conciliation - A lot is up to the conciliator and their knowledge, preparedness, willingness to raise points. - Timeframes are so short (1.5hrs) - Risk associated with dismissing personal concerns due to time constraints Mediation --------- NOTE: Mediation agreement is not the end of dispute. If in litigation, need to inform the court and do as required to cease. Apply for consent orders if appropriate to make binding. Can't do these things *in* mediation, have to be done after. - Elements: - Oldest Alternate Dispute Resolution Process - Legal backdrop - Confidential - Super power of confidentiality -- can say and contemplate anything - Non-Binding - Part of the power - Part of the risk - Autonomous (autonomy of decisions) - Independent/Impartial Mediator - \~80% success rate (before getting to court; but still probs 70-75% in those higher areas; 65% in property and 52% in family (which has high risk factors)) - Rapport driven - Mediation Contexts - Court ordered - Voluntary - Legally assisted - Mediator skills and background - International and Domestic - Before during and after proceedings - Australian Mediator and Dispute Resolution Accreditation Standards - Suitable disputes: - International disputes - Commercial civil disputes - Other civil disputes - Industrial/employment - Personal Injuries - Neighbourhood disputes - Interpersonal disputes - Family Law - Children's Court - Wills and Estates - Mediating international commercial disputes - Singapore Convention on Mediation - United Nations Convention on International Settlement Agreements Resulting from Mediation (the "Singapore Convention on Mediation") - Multilateral treaty offering a harmonised framework for enforcement of international commercial agreements reached at mediation - Designed to minimise the impact of international trade disputes - Promotes mediation as an effective ADR alternative to arbitration (and litigation) - Addresses the absence of an efficient cross-border mechanism for enforcement of agreements reached at mediation - The amended Model Law (the UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation (2018)) was adopted at the 51^st^ UNCITRAL (UN Commission on International Trade Law) Commission session in mid 2018 - December 2018 UN General Assembly adopted the convention, recommended it be known as "the Singapore Convention on Mediation" and authorised a signing ceremony for September 2019 - 57 signatory countries -- including USA, China, India, South Korea and 14 parties who have ratified the convention into domestic law (Belarus, Ecuador, Fiji, Georgia, Honduras, Japan, Kazakhstan, Nigeria, Qatar, Saudi Arabia, Singapore, Sri Lanka, Turkey, Uruguay.  - Australia became a signatory in September 2021 - The amended Model Law (the UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation (2018)) was adopted at the 51^st^ UNCITRAL (UN Commission on International Trade Law) Commission session in mid 2018 - December 2018 UN General Assembly adopted the convention, recommended it be known as "the Singapore Convention on Mediation" and authorised a signing ceremony for September 2019 - 57 signatory countries -- including USA, China, India, South Korea and 14 parties who have ratified the convention into domestic law (Belarus, Ecuador, Fiji, Georgia, Honduras, Japan, Kazakhstan, Nigeria, Qatar, Saudi Arabia, Singapore, Sri Lanka, Turkey, Uruguay.  - Australia became a signatory in September 2021 - Key criteria: - 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 - Mediation settlement agreements: - Can be directly enforced by the relevant competent authority of a Party state, in accordance with its rules of procedure and under the conditions laid down in the Convention. (***Art 3(1) SCM***) -- party must provide evidence that the agreement has resulted from a mediation - Can be invoked to prove that the matter has been resolved if a dispute arises in relation to a matter already resolved by the settlement agreement. (***Art 3(2) SCM***) - 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***), - Hard to complain under int mediation agreement though. - 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***) - ### History of mediation in Australia - First nations DR -- essential given the several hundred different and mobile nations/language groups within Australia - Informal tribunal and ombudsman systems inherited from English Law - **1892** ***Courts of Conciliation Act (Qld)*** - **1904** (Cth) Arbitration and Conciliation Court calls for informal conferencing - **1960s/1970s** interest in informal dispute resolution grows - 1**975** ***Family Law Act*** provides for counselling and conferences - **1975** Institute of Arbitrators Australia founded to address crippling legal disputes in the construction industry (now known as the Institute of Arbitrators and Mediators Australia -- **IAMA**) - ADR processes still adversarial and do not provide for meaningful party autonomy - **1980** Community Justice Centres Pilot commences in NSW (Vic 1987, Qld 1990) -- modelled on US community-based mediation services - **1980**s Community Justice (mediation) centres established in most capital cities - **1989** LEADR (Lawyers Engaged in Alternative Dispute Resolution) founded. Focus was to lobby for use of mediation within the legal system - **1990** \