Dispute Resolution Processes
Mediation is a non-binding collaborative process where parties who are in dispute are assisted by a Mediator, who is a third party neutral independent of the dispute, to come to an agreed resolution. The mediator has no power to impose a decision but instead assists the parties to work out a solution that they want. The techniques employed include information exchange and exploring options to resolve the dispute, rather than focusing on legal rights.
Mediation gives the parties to a dispute the opportunity to express their feelings about what has happened to cause the dispute. They are also principally involved in the process of option generation, settlement discussions and ultimate resolution by agreement.
The options available to the parties and the solutions reached at mediation, are much broader and more creative than can be made by a court. The process is confidential and governed by the mediation agreement entered into between the parties and allows their lawyers to fully assist during the process.
Conciliation is a process similar to mediation but historically allied to the practice of arbitration. Conciliation is a process in which the parties to a dispute, with the assistance of a dispute resolution practitioner (the conciliator), identify the issues in dispute, develop options, consider alternatives and endeavour to reach an agreement. It is a facilitative process that may involve an advisory role for the conciliator on the content of the dispute or the outcome of its resolution but not a determinative one.
The conciliator may have an advisory role. The conciliator may advise on or determine the process of conciliation whereby resolution is attempted, and may make suggestions for terms of settlement, give expert advice on likely settlement terms, and may actively encourage the participants to reach an agreement.
The conciliator may advise on or determine the process of conciliation whereby resolution is attempted, and may make suggestions for terms of settlement, give expert advice on likely settlement terms, and may actively encourage the participants to reach agreement.
Arbitration is a time honoured practice of resolving disputes privately now governed by legislation in every Australian state.
An arbitration process is where parties agree to have their dispute determined in a legally binding manner by an independent person, the arbitrator, who has expertise in the subject matter of the dispute or the process of arbitration. The arbitrator is jointly chosen and appointed by the parties and required to act fairly and judicially in determining their dispute. The parties agree to be bound by the decision of the arbitrator so that on the delivery of the arbitrators award, the dispute is usually finalised.
Arbitration is available as an alternative to litigation as a process for resolving commercial/business disputes. The arbitrator is required to act judicially, including delivering reasons for the award (determination). More importantly, arbitrators are usually expert in the subject matter, as well as being legally trained, and they have greater powers than judges in exploring the subject matter of the dispute. They can:
- call for more evidence,
- personally investigate or
- appoint their own technical experts (e.g. a forensic accountant) to properly evaluate the evidence obtained.
The arbitration process has a greater ability, when properly managed, to provide a just, quick, less expensive and legally binding resolution to party’s commercial disputes.
In Australia, state and territories have enacted the Commercial Arbitration Act, a uniform legislation that provides control and assistance to the arbitration process and protection of the arbitrator’s award. These Acts (recently revised in 2010) are based on the internationally accepted UNCITRAL Model Law for the regulation of international trade which also underlies Australian’s International Arbitration Act.
[UNCITRAL is the United Nations Commission on International Trade Law.}
Med-Arb, hybrid dispute resolution. Combined or hybrid dispute resolution processes are processes in which the dispute resolution practitioner plays multiple roles. For example, in conciliation and in conferencing, the dispute resolution practitioner may facilitate discussions, as well as provide advice on the merits of the dispute. In hybrid processes, such as med-arb, the practitioner first uses one process (mediation) and then a different one (arbitration).
Expert Determination is an investigative process where the Expert makes a determination on the basis of their own expertise and the investigations they can properly conduct, as well as the evidence and submissions of the parties. The Expert is chosen on the basis of their specialist qualification or experience in the subject matter of the dispute.
Australian courts generally uphold a provision in the party’s contractual agreement to resolve disputes by Expert Determination. Courts have also held, that unlike adversarial hearings, there is no requirement on an Expert to allow the parties the opportunity to make submissions and will enforce an Expert’s determination, even where it is established that it is incorrect.