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
------------------------------