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Is Arbitration not within the remit of ADR?

  • 1.  Is Arbitration not within the remit of ADR?

    Posted 21-03-2021 12:40 PM
    Edited by David Chin 11-05-2021 10:15 AM

    Professor Onyema emphasised 'that quite a lot of Arbitration lawyers like herself will not consider Arbitration as falling within ADR because it is a process wherein a third party decides or makes a decision for the parties, unlike Mediation or Conciliation where the third (3rd) party supports the parties or the disputants to decide for themselves.' 

    What is your take on the above-stated statement?  Do you Agree or Disagree?


    https://memberconnect.resolution.institute/blogs/chinwe-umegbolu1/2021/03/19/careers-in-adr



    ------------------------------
    Chinwe Umegbolu
    PhD Student / Part-time lecturer
    University of Brighton
    Brighton
    2413678907
    ------------------------------


  • 2.  RE: Is Arbitration not within the remit of ADR?

    Posted 22-03-2021 07:27 AM
    Arbitration is the pinnacle of 'determinative' ADR.  It is the most formal of the processes which parties submit to when they are unable to resolve matters themselves.
    Mediation is the first step where an independent third person attempts to encourage parties to dissect the dispute and see the strengths and weaknesses of their position and the need to compromise.
    Conciliation attempts the same but offers an opinion on the solution if the parties are intransigent.  This is akin to a Dispute Board 'recommendation' although the latter may be more formal.
    The next step in 'resolution' is a binding third party determination - this may be 'interim binding' as is the case with Adjudication, or Dispute Boards or an Expert Determination with monetary limits. 
    Failing all of these, there is 'final and binding' arbitration.
    Remember, the processes we are discussing are intended to achieve 'resolution' outside the Courts.

    ------------------------------
    Barry Tozer
    Consulting Construction Engineer
    Tozer & Associates Pty Ltd
    Sydney CBD NSW
    411224690
    ------------------------------



  • 3.  RE: Is Arbitration not within the remit of ADR?

    Posted 23-03-2021 07:46 AM
    One thing that I don't think that anyone has mentioned yet, is that the arbitration process in international arbitration's is completely confidential. That even extends to the award not being made public unless it needs to be enforced or is subject to appeal. I think this clearly makes it an alternative process to court trials and decisions and is perhaps one of the main reasons why it has been embraced by parties to commercial disputes.

    ------------------------------
    David Baldry
    Barrister, Arbitrator, Mediator and Adjudicator
    William Forster Chambers
    1 Harry Chan Street Darwin NT 0800
    Phone +61 8 8982 4700
    ------------------------------



  • 4.  RE: Is Arbitration not within the remit of ADR?

    I'mLinkedIn
    Posted 23-03-2021 09:07 AM
    I think the point that emerges from this discussion is that the term "arbitration" itself is not homogenous.  It comes in many shapes and forms and some of them may come within the purview of ADR and others may not.  The point that David Baldry has made is a good one, that is, that arbitration, especially international arbitration, is a confidential process and even the award is confidential in some circumstances.  In some jurisdictions, such as applies in NSW under section 38 of the Civil Procedure Act, 2005 (NSW), there is compulsory court-annexed arbitration provision which is anything but confidential or voluntary and pursuant to the Act and the Rules of Court, the Court may refer any matter out to arbitration for hearing by a court appointed arbitrator.  The award, which becomes a judgment of the court after 28 days, is as public as any other judgment and there is very little to distinguish that arbitration process from a hearing in open court.  Nevertheless the court system refers to it as "an ADR process" which I think is inaccurate in the circumstances.  In Wes Trac Pty Ltd v East Coast OTR Tyres Pty Ltd [2008] NSWSC 894 at [38] Barret J pondered why such arbitrations are diminishing in popularity and concluded that one reason is because the arbitral award "...can be displaced virtually at the whim of a party and replaced by a judicial process and a judicial determination."  Whilst His Honour was there dealing with Supreme Court arbitrations, my own anecdotal experience suggests that, in the Local Court at least where magistrates deal with a busy criminal list every day, the court-annexed arbitration system for civil cases is as popular as ever.  I have delivered more than a hundred arbitral awards, only one of which was disturbed on a rehearing.  This process is quite different from arbitrations conducted under the Commercial Arbitration acts and and from International Arbitrations and it may be that we need to acknowledge that some arbitrations may come under the ADR banner and some may not.

    ------------------------------
    Dr John Woodward
    Conjoint Lecturer
    University of Newcastle NSW
    0403 054 411
    ------------------------------



  • 5.  RE: Is Arbitration not within the remit of ADR?

    Bronze Member
    Posted 23-03-2021 04:53 PM

    There are two parts to the definition of 'alternative".

    1. (of one or more things) available as another possibility or choice.

          2.  relating to activities that depart from or challenge traditional norms.

    Arbitration certainly meets the first part of the definition of 'alternative' in that it is another way of having your matter determined by someone authorised to impose a solution. Judicial determination and arbitration are part of the same genre albeit with differing procedures.

    Arbitration does not meet the second part of the definition.

    Arbitration has been an integral part of the traditional norms of our Western judicial system since the Common-Law Procedure Act (UK) 1854. It has been prominent in Australian jurisdictions since the late 19th century and throughout the 20th century. It, like judicial determination, has become the traditional norm.

    It is the introduction of mediation in the latter part of the 20th century that has seen a fundamental departure from this traditional norm. The term ADR arose directly out of this development.

    The process of imposing a result on the parties being expressly excluded in the mediation approach has been the fundamental departure.

    Therefore, arbitration can call itself ADR if it likes but mediation (using the broad Singapore Convention definition) is the more accurate representation of what has become known as ADR.



    ------------------------------
    Greg Rooney
    Greg Rooney Mediator
    Bridgewater SA
    0405 612 789
    ------------------------------



  • 6.  RE: Is Arbitration not within the remit of ADR?

    Posted 24-03-2021 06:29 AM
    The different views all have merit and turn on the defn of adr used-in my world i try to talk about the spectrum of DR options from unassisted direct discussions thru to litigation. So does the answer have any real significance?-Arb.is closest to litigation on the spectrum it is
    different as it is private and parties can Decide or have a hand in deciding who will be deciding.More like expert determination

    ------------------------------
    Max Kimber
    SC
    State Chambers
    Sydney NSW
    414662648
    ------------------------------



  • 7.  RE: Is Arbitration not within the remit of ADR?

    Posted 25-03-2021 08:17 AM
    Thanks Max and Greg for your responses to this question.  I enjoyed reading your thoughts.

    ------------------------------
    Nina Harding
    Senior Mediator
    Nina Harding Mediation Services Pty Ltd
    NORTH SYDNEY NSW
    408447525
    ------------------------------



  • 8.  RE: Is Arbitration not within the remit of ADR?

    Posted 25-03-2021 08:23 AM
    Thanks Nina-we are due to catch up!! Options for lunch or coffee soon? 


    Max Kimber SC

    State Chambers
    Level 36, 52 Martin Place 
    Sydney NSW 2000

    Tel: 02 9223 1522
    Fax: 02 9223 7646


    Liability limited by a scheme approved the Professional Standards Legislation.





  • 9.  RE: Is Arbitration not within the remit of ADR?

    Posted 06-04-2021 02:59 PM
    Hi Max,  That would be great.  I'll message you with some dates.

    ------------------------------
    Nina Harding
    Senior Mediator
    Nina Harding Mediation Services Pty Ltd
    NORTH SYDNEY NSW
    408447525
    ------------------------------



  • 10.  RE: Is Arbitration not within the remit of ADR?

    I'mLinkedIn
    Posted 17-07-2021 07:50 PM
    I agree with Barry.  There is a continuum.  Indeed the diversity of issues discussed at our International Conference this week illustrated the point well.  Both facilitative and determinative processes were well represented.  And hybrids are no less properly described as ADR.  In my view the hallmark of a skilled ADR practitioner is to move up and down the continuum, as needed in the process of resolving a dispute.  Even med-arb-med is ADR - the notion that the middle phase isn't seems to me distinctly odd, even if it is unusual.

    ------------------------------
    Philip Argy
    Principal and CEO
    ArgyStar.com
    Sydney NSW
    pargy@argystar.com
    +612 9719 8521
    ------------------------------



  • 11.  RE: Is Arbitration not within the remit of ADR?

    Bronze Member
    Posted 17-07-2021 09:51 PM

    I suggest that determinative processes are more to do with resolution whereas the non determinative processes are about evolution. The latter are a genuine alternative to traditional litigation and it's little brother arbitration.

    In a complex post industrial world where the connections between things are more important than the things themselves it is a process where parties face each without interruptive layers proffered by lawyers (disintermediation)  that opens  the door to new possibilities and serendipity. 

    Cutting a deal based on the opinion of one lawyer just doesn't cut it.  



    ------------------------------
    Greg Rooney
    Mediator
    Greg Rooney Mediator
    Bridgewater SA
    0405 612 789
    ------------------------------



  • 12.  RE: Is Arbitration not within the remit of ADR?

    I'mLinkedIn
    Posted 18-07-2021 03:07 PM
    I suggest this does not need an overly sophisticated analysis: ALTERNATIVE DISPUTE RESOLUTION means any alternative process to litigation in a court of law with a binding ruling made by a judge.  That comfortably accommodates arbitration, adjudication, referee, expert determination, mini-trial and other determinative as well as facilitative processes and hybrids.

    ------------------------------
    Philip Argy
    Principal and CEO
    ArgyStar.com
    Sydney NSW
    pargy@argystar.com
    +612 9719 8521
    ------------------------------



  • 13.  RE: Is Arbitration not within the remit of ADR?

    I'mLinkedIn
    Posted 18-07-2021 02:15 PM
    Barry
    I do quite a lot of expert determinations "ED". Most agreements with ED within the dispute clause have the determination as final and binding , and also usually state, the agreed upon person shall act as an expert and not as an arbitrator.

    ------------------------------
    John Rundell
    Chartered Accountant in public practice, Regsitered Tax Agent, Fellow of Chartered Accountants Australia and New Zealand, Fellow CPA Australia, Fellow
    John Rundell and Co, Chartered Accountants and ADR specialists
    Brighton VIC
    419568506
    ------------------------------



  • 14.  RE: Is Arbitration not within the remit of ADR?

    Posted 18-07-2021 02:53 PM
    John,
    In NSW, the state government conditions of contract used for most projects is GC21.  It has expert determination as its primary dispute resolution mechanism but the determination is generally only final and binding if the amount to be paid from one party to another is less than $500,000.   In most of the EDs that I do, that limit is exceeded and there is the option to litigate.  However, having got a (hopefully well-reasoned) determination, few matters do proceed to litigation.   
    You raise any interesting observation regarding the role of the determiner as an 'expert' and not as an 'arbitrator'. 
    In most cases that I have done recently, there is more legal expertise required than technical knowledge.  Often in NSW, the appointed 'expert' is a barrister or retired judge.  What then does acting as an 'expert' mean compared with acting as an "arbitrator'.  It avoids legal challenges to the determination which often follow from an arbitral award.

    ------------------------------
    Barry Tozer
    Chartered Civil Engineer and Arbitrator
    Tozer & Associates Pty Ltd
    Sydney CBD NSW
    411224690
    ------------------------------



  • 15.  RE: Is Arbitration not within the remit of ADR?

    Early Adopter
    Posted 18-07-2021 03:10 PM
    Whether ADR is additional, appropriate or alternative - or amicable, hence the reference by Professor Onyema to the fact that ADR does not include arbitration, which is why some call the whole spectrum Arbitration and ADR - it should include ALL methods outside of litigation, including negotiation.

    As to agreements for expert determination, I have always seen included the the expert is not an arbitrator. whether the issue to be determined is a contractual or legal one does not change the 
    legal status of the neutral. ED, as it is inaptly abbreviated, is nit governed by the CAAs. This goes beyond the mere binding nature of the ultimate determination.

    ------------------------------
    Donna Ross
    International ADR Practitioner
    Donna Ross Dispute Resolution
    Melbourne VIC
    0412 060 854
    ------------------------------



  • 16.  RE: Is Arbitration not within the remit of ADR?

    Posted 19-07-2021 07:59 AM
    I must strongly agree with Phillip.  The term ADR covers all forms of dispute resolution that are not litigation.

    Some ADR such as Arbitration and Expert Determination are processes involving a final determination by the person acting in a quasi judicial role in order to give a final and binding decision.  Other processes such as Mediation differ but still fall into the non-litigation category.

    Sadly, as I note in Barry's  text, we are often subject to State based inconsistencies, especially in the Adjudication world.

    Nobody can nor should they be able to oust the jurisdiction of the Courts.  Even under the limited criteria in the CAA, the "final and binding" decision is challengeable.

    It is only litigation that is before a court.  All other processes are ADR.

    Ian McMaster
    Director
    Hatchone Pty Ltd
    Arbitrator



    ------------------------------
    Ian McMaster
    Director, Arbitrator
    Hatchone Pty Ltd
    Armadale VIC
    61435846356
    ------------------------------



  • 17.  RE: Is Arbitration not within the remit of ADR?

    Bronze Member
    Posted 19-07-2021 11:51 AM

    Although this appears to be one of those frustrating definitional debates there is a serious underlying principle we are traversing.

    I take the view that litigation, arbitration, expert determination, dispute boards, adjudication, referee, mini-trial and other determinative processes are all the same horse but with different jockeys.  The ultimate decision is contracted out to an intermediary.

    The alternative is to make the decision in-house so to speak. Whether this be mediation or in the case of major projects, Project Alliancing. 

    Project Alliances allow all parties an equal say in any decisions and all issues must be resolved without recourse to litigation.  All decisions are made by an Alliance Board made up of one representative from the owner and each non-owner participant. All decisions must be made unanimously with no abstentions. It is a holistic approach which gives it amazing flexibility in times of disagreement.

    Everyone is equally responsible for the problems and the solutions. It has a proven record of better than 'business as usual' outcomes.  There is no need for dispute boards, dispute resolution clauses or referees as is self-directing.   

    Both mediation and Project Alliances fit with the whole movement towards disintermediation particularly with the removal of intermediaries in economics, supply chains, management, field ethnography and, dare I say, the law and politics.

    In addition, there is a whole rewilding movement in nature, economics and society in general. Mediation and Project Alliances and other nondeterministic approaches to conflict are away for the law to re-wild itself in a post-ordered industrial legal and commercial world that has disappeared. The world is now a more fluid and interconnected place. A lot wilder.

    Litigation has lost its commercial value not because mediation is an attractive product that everyone is rushing to buy nor is it because the judiciary and the legal profession have suddenly become incompetent. It is because the world has changed.  Generals generally tend to fight the last war.  The legal profession needs to be careful that it is not doing the same.



    ------------------------------
    Greg Rooney
    Mediator
    Greg Rooney Mediator
    Bridgewater SA
    0405 612 789
    ------------------------------



  • 18.  RE: Is Arbitration not within the remit of ADR?

    Posted 19-07-2021 01:01 PM
    The determinative end of ADR can be a knock-down, drag-em-out, winner-takes-all fight to the finish. While it can serve as a circuit breaker and allow a relationship to reset, it can also burn bridges and bring a relationship to an acrimonious end.

    And, sometimes, that's what you want.

    Not all business interactions are relationship-based - many are purely transactional, you make money on this deal or not at all. Even where business is relational, some relationships are toxic, and, if you are going to get out, you might as well take as much loot as you can grab.

    ------------------------------
    Dale Morrell
    Chief Executive - Morrell Plumbing Group
    Morrell Plumbing Group
    Engadine NSW
    408825003
    ------------------------------



  • 19.  RE: Is Arbitration not within the remit of ADR?

    I'mLinkedIn
    Posted 22-03-2021 08:02 AM
    That is an interesting question which has certainly occupied the minds of dispute resolution theorists over time.  It would appear from the evidence that the official court view is that arbitration is encompassed as a form of ADR.  Paragraph 8 of the Local Court of NSW Practice Note Civ. 1 speaks of referral to compulsory arbitration under the heading of "Alternative Dispute Resolution."  Other NSW Court practice notes speak of "referral to arbitration or some other form of ADR."  Outside the court system arbitrations, although comprising a determinative rules based process, nevertheless involve an element of disputant choice.  For example, in many cases the parties either agree to arbitrate their dispute or they have agreed pursuant to some earlier contract that they will arbitrate any dispute.  They agree on the selection and appointment of an arbitrator and they usually agree on the time and place of the arbitration.  Few of these options are available in a strictly litigated environment.  Notwithstanding all of this, my own view is that arbitration is not alternative dispute resolution.  It is litigating in another room.  This is because, ultimately, it is a rules based determination of a dispute by a third party who considers the dispute on the basis of evidence and makes a binding determination.   The parties themselves play no part in the decision making process except by way of evidence in which they attempt to persuade the decision maker of their case.  The decision maker merely makes a determination on the evidence and provides reason for the determination.  In my view that is not ADR.  My own arbitration practice comprises receiving cases from the court in respect of which I am expected to make procedural directions, hear the case, provide reasons for the award and return the file to the court.  There is no voluntary component of the process at all (except perhaps to have the matter re-heard before the court if they are dissatisfied with my decision).

    ------------------------------
    Dr John Woodward
    Conjoint Lecturer
    University of Newcastle NSW
    0403 054 411
    ------------------------------



  • 20.  RE: Is Arbitration not within the remit of ADR?

    Bronze Member
    Posted 22-03-2021 08:20 AM
    The United Nations Convention on International
    Settlement Agreements Resulting
    from Mediation - The Singapore Convention - defines 'mediation' as any process whatever it's called (and that includes conciliation, facilitation, restorative justice and all other descriptors) that does not impose a solution.

    It excludes arbitration.

    ARTICLE 2, CLAUSE 3.
    "Mediation" means a process, irrespective of the expression
    used or the basis upon which the process is carried out, whereby
    parties attempt to reach an amicable settlement of their dispute
    with the assistance of a third person or persons ("the mediator")
    lacking the authority to impose a solution upon the parties to the
    dispute."

    You can look at traditional judicial determinative processes and non-judicial determinative processes like arbitration as processes where the power is with the determiner and the parties are channeled (or funneled) through their lawyers. The parties pay the money and watch the one act play from the back of the room. They simply await the verdict.

    The alternative is where the power is  with the parties. The matter still proceeds in the shadow of the law and can be converted into a legally binding agreement by lawyers. In this alternative process the law and the legal representatives are servants of what eventually emerges through the interactive mediation process. That's why it is such an alternative.

    Whereas, in the judicial/ arbitrative approach the law and the legal profession are the masters of the process and the parties its servants.





    ------------------------------
    Greg Rooney
    Greg Rooney Mediator
    Bridgewater SA
    0405 612 789
    ------------------------------



  • 21.  RE: Is Arbitration not within the remit of ADR?

    Posted 22-03-2021 08:56 AM

    Depends what you mean by "Alternative" in ADR.

    Traditionally, "alternative" has meant alternative to the courts. In that sense arbitration is ADR because it's not a court resolving the dispute.

    However, the author seems to equate "alternative" with "facilitative" and that "determinative" forms of ADR (arbitration, adjudication, expert determination etc) are not "alternative" because a third party imposes a binding (final or interim) decision. This is a view, but it's not my view.

    Or, perhaps because the conduct of many arbitrations is similar to the conduct of a court case, the author sees them as the "same" and therefore not "alternative" meaning "different". This is a definition that alternative can bear but it's not how it's used in the phrase "Alternative Dispute Resolution".



    ------------------------------
    Dale Morrell
    Chief Executive - Morrell Plumbing Group
    Morrell Plumbing Group
    Peakhurst NSW
    408825003
    ------------------------------



  • 22.  RE: Is Arbitration not within the remit of ADR?

    Posted 22-03-2021 09:02 AM
    Dale, you took the words right off my keyboard. I agree 100% with your response. Tess

    ------------------------------
    Tess Dellagiacoma
    Principal
    Argyll FDRP
    Lismore NSW
    448837372
    ------------------------------



  • 23.  RE: Is Arbitration not within the remit of ADR?

    I'mLinkedIn
    Posted 22-03-2021 11:44 AM
    I feel Arbitration falls within ADR. I view thee Arbitrator as one of the disputing parties, albeit having no interest in the decision other than its fairness. The arbitrator is open to being pursued by the parties, often independently of 'black letter law' technicalities or constraints. The parties therefore are the facilitators and the Arbitrator one who makes a decision they (the mediator) can live with, without that decision's exceeding the mediators authority. A judge on the other hand although having a somewhat similar role has to consider legislation, precedents and possibility of appeals.

    ------------------------------
    Anthony Photiadis
    Solicitor
    N/A
    Chapel Hill QLD
    733787161
    ------------------------------



  • 24.  RE: Is Arbitration not within the remit of ADR?

    Posted 22-03-2021 12:12 PM
    Hi Peter,
    I agree with your basic premise, however, from my arbitration training, just like a judge, arbitrators "must consider legislation, precedents and possibility of appeals." 
    The difference, IMO, is that arbitrators may consider and agree with any resolution that the parties arrive at and write the (confidential) agreement / award accordingly. This might occur in a mediation session within the arbitration process. 
    Arbitration  is ADR because it has this flexibility (to use the parties' resolution) that a judge may not have.

    ------------------------------
    Tess Dellagiacoma
    Principal
    Argyll FDRP
    Lismore NSW
    0448837372
    ------------------------------



  • 25.  RE: Is Arbitration not within the remit of ADR?

    Posted 22-03-2021 12:32 PM
    As Dale said, it all depends on the definition of ADR. Traditionally, this was Alternative (to litigation in court) Dispute Resolution. Then, some suggested that it should be 'Amicable Dispute Resolution', while others suggested 'Appropriate Dispute Resolution'. Each term implied that everything and anything is better than litigating in the courts where the parties have no control over the process and no say in the outcome. This misconception only adds to an already divided perception of what has become a system of various processes all serving the same scope of managing disputes. Today the range of various facilitative and determinative processes recognised and supported by legislation and the courts are equally part of this system that in most cases allows parties to manage their dispute in a way that best serves that dispute. Courts are an integral part of this system and their processes now incorporate many steps that not too long ago were only available in the 'Alternative' processes. It may be time to move on with the terminology to better reflect the changing reality of dispute management overall.

    ------------------------------
    Dalma Demeter
    Deputy Chair
    UNCCA
    Phegans Bay NSW
    0451 679 010
    ------------------------------



  • 26.  RE: Is Arbitration not within the remit of ADR?

    Posted 22-03-2021 12:44 PM
    "time to move on with the terminology"? I disagree. I wouldn't want to start behaving like a government department, wasting resources (member time, RI funds) on changing names. I think that's missing the point. A good definition is always helpful.   

    ------------------------------
    Tess Dellagiacoma
    Principal
    Argyll FDRP
    Lismore NSW
    448837372
    ------------------------------



  • 27.  RE: Is Arbitration not within the remit of ADR?

    Posted 22-03-2021 01:24 PM
    Tess, I was not suggesting for RI to invest resources in changing names for the sake of changing names. It may happen organically in practice if updated definitions no longer match the terminology used. All I implied was to allow for the beautiful flexibility that is characteristic to the field to change terms too to best reflect reality. But you are right; a good definition is important and may solve inconsistencies just as well.

    ------------------------------
    Dalma Demeter
    Deputy Chair
    UNCCA
    Phegans Bay NSW
    0451 679 010
    ------------------------------



  • 28.  RE: Is Arbitration not within the remit of ADR?

    Bronze Member
    Posted 22-03-2021 04:53 PM
    ADR and the word 'alternative' can mean whatever you want it to mean. 

    For the legal profession ADR often means Alarming Drop in Revenue and for the judiciary Alarming Drop in Relevance.
     
    ADR /Mediation has certainly shaken up the Centuries-old litigious dispute resolution model. It is now a mere shadow of its former self in terms of participation.

    We now have judges in the Federal Circuit Court and in state Supreme Court's (SA) sitting as mediators in their own courts although referring un-resolved matters back to other members of the bench to make a determination. Are the courts now turning ADR too ??

    It's interesting that arbitrators want to market themselves or be seen to align with the broader ADR community rather than being seen as a legitimate alternative to litigation. 

    It seems everyone is now ADR. 

    The Singapore Convention created a line in the sand, in my view. On one side is mediation and on the other side arbitration/judicial determination. Both sides should be comfortable in their own skin.

    ------------------------------
    Greg Rooney
    Greg Rooney Mediator
    Bridgewater SA
    0405 612 789
    ------------------------------



  • 29.  RE: Is Arbitration not within the remit of ADR?

    Posted 22-03-2021 06:12 PM
    Hi Greg, that's an interesting comment:
    "We now have judges in the Federal Circuit Court and in state Supreme Court's (SA) sitting as mediators in their own courts although referring un-resolved matters back to other members of the bench to make a determination."

    Can you give a deidentified example?


    ------------------------------
    Tess Dellagiacoma
    Principal
    Argyll FDRP
    Lismore NSW
    448837372
    ------------------------------



  • 30.  RE: Is Arbitration not within the remit of ADR?

    Bronze Member
    Posted 22-03-2021 07:12 PM
    Hi Tess

    Two federal circuit court judges in the Adelaide registry refer matters in their list to each other for judicial mediation conferences. During Covid they were called judicial assessment conferences.

    Two sitting South Australian Supreme Court Judges/Masters conduct in-house mediation particularly in relation to contested estates matters and other noncriminal matters.

    In the Canadian province of Québec judges have been performing judicial mediation for decades. Research has disclosed that litigants have been delaying settlement until they are able to access a free judicial mediator. It has killed the private mediation profession and has not resulted in lowering the cost of justice as compared to jurisdictions where private mediation has flourished. 

    Parties have somehow got it into their head that a judge mediator must be better than a non-judge mediator. Maybe just because it's free!

    ------------------------------
    Greg Rooney
    Greg Rooney Mediator
    Bridgewater SA
    0405 612 789
    ------------------------------



  • 31.  RE: Is Arbitration not within the remit of ADR?

    Posted 24-03-2021 09:33 PM
    Thank you all for your contributions. Though they are divergent views, they all raised valid points.
    Hence there is a need for more research on the above subject matter... possibly get every one of you on the show to discuss further. :) 

    Many thanks.

    ------------------------------
    Chinwe Umegbolu
    PhD Student / Part-time lecturer
    University of Brighton
    Brighton
    2413678907
    ------------------------------



  • 32.  RE: Is Arbitration not within the remit of ADR?

    Early Adopter
    Posted 25-03-2021 01:53 PM
    I have had some issues logging on and been busy with both facilitative and deteminative DR. Dalma has said quite well what I would have. I also agree with Barry and Dale.

    Whether alternative, amicable or appropriate, it is an alternative to litigation. Although litigation may be appropriate in some cases.

    I used the acronym 'DR' instead of 'ADR' above, but it was tongue-in-cheek. 

    Many firm now use DR instead of litigation for their dispute resolution services. Some who believe that ADR should be only amicable or facilitative would say ADR and Arbitration to encompass both, as has donne the ICC. This is really limited to mediation and arbitration and possibly dipute boards and does not cover the whole gamut  means of resolving disoutes that are alternatives to litigation. In teaching or advisong clients, I too tend to expalin the spectrum. This is particluarly important at the contract drafting stage whan deciding which form or forms to include.

    ------------------------------
    Donna Ross
    International ADR Practitioner
    Donna Ross Dispute Resolution
    Melbourne VIC
    0412 060 854
    ------------------------------



  • 33.  RE: Is Arbitration not within the remit of ADR?

    I'mLinkedIn
    Posted 26-03-2021 11:59 AM
    True a third party makes a decision in 'Arbitration' but it is not always if at all a judicial style decision. In fact the arbitrator tries to find a middle ground or 'a decision both parties can live with'. we all know that the court may concede some points to one party but it is seldom a 'drawn game'. I make the point again it is based on highlighting and explaining interests to the parties. It has more in common with evaluative mediation than litigation and arguably expert determination.
    Finally the whole of ADR can tend to be a practice in search of a theory, whereas the aim is to find alternatives to litigation.

    ------------------------------
    Anthony Photiadis
    Solicitor
    N/A
    Chapel Hill QLD
    733787161
    ------------------------------



  • 34.  RE: Is Arbitration not within the remit of ADR?

    Posted 26-03-2021 02:45 PM
    Hi. I have always thought of the word "alternative" in Alternative Dispute Resolution as meaning an alternative to litigation before a court, in Australia a Chapter lll court in the Australian Constitution. So I have thought of the Fair Work Commission (and its predecessor institutions) as an ADR institution. All arbitration is not the same. There is mandatory arbitration, private arbitration, Med-Arb, non-binding recommendations etc. Aren't they all at the upper end of a continuum from non- determinative to determinative processes outside the court system, with facilitative mediation at the lower end of the continuum? Anna Booth

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    Anna Booth
    Consultant
    CoSolve
    Avalon Beach NSW
    0418 251 155
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