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.
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Greg Rooney
Mediator
Greg Rooney Mediator
Bridgewater SA
0405 612 789
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Original Message:
Sent: 19-07-2021 07:58 AM
From: Ian McMaster
Subject: Is Arbitration not within the remit of ADR?
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
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Ian McMaster
Director, Arbitrator
Hatchone Pty Ltd
Armadale VIC
61435846356
Original Message:
Sent: 18-07-2021 02:14 PM
From: John Rundell
Subject: Is Arbitration not within the remit of ADR?
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.
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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
Original Message:
Sent: 22-03-2021 07:27 AM
From: Barry Tozer
Subject: Is Arbitration not within the remit of ADR?
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.
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Barry Tozer
Consulting Construction Engineer
Tozer & Associates Pty Ltd
Sydney CBD NSW
411224690
Original Message:
Sent: 21-03-2021 12:40 PM
From: Chinwe Umegbolu
Subject: Is Arbitration not within the remit of ADR?
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
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Chinwe Umegbolu
PhD Student / Part-time lecturer
University of Brighton
Brighton
2413678907
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