Open Forum

  • 1.  A win for dispute resolution

    Posted 17-06-2022 10:04 AM
    Thanks to fellow member @Robert Riddell and Piper Alderman for sharing this article on LinkedIn. It may be of interest to many of our practitioners so I thought I would share here also.

    Supreme Court upholds the "contractual bargain" - failed circumvention of alternative dispute resolution process in WestConnex deed
    Piper Alderman remove preview
    Supreme Court upholds the "contractual bargain" - failed circumvention of alternative dispute resolution process in WestConnex deed
    Rees J's decision in WCX M4-M5 Link AT Pty Ltd v Acciona Infrastructure Projects Australia Pty Ltd (No 2) [2022] NSWSC 505 provides us with further confirmation of the Court's reluctance to interfere with or modify contractual alternative dispute resolution processes (such as referral to expert determination or arbitration).
    View this on Piper Alderman >


    Amber Williams
    Resolution Institute

  • 2.  RE: A win for dispute resolution

    Bronze Member
    Posted 20-06-2022 06:19 PM
    Thank you Amber, David and Peter for your comments

    One of the reasons for producing the video was to demonstrate how you can use a facilitative joint session approach to mediate a hard positional bargaining commercial dispute where the parties are stuck far apart. 

    The problem with the legal profession is that it has had centuries of de-humanising dispute resolution. There is a genuine fear of the 'touchy-feely' aspects of the joint session. It's time to get over it.

    The joint session is a powerful instrument. It's all in the preparation of the parties in the intake session.

    On the question of mediation training models, I found the basic training step-by-step model helped me greatly in my first few mediations. It is 's a good model for beginners. But it is a beginners model.

    Fortunately in my basic mediation training course we were also shown a video of the late John Haynes breaking all the rules (thank you Laurence Boulle). But if you looked closely he was still doing everything just in a different order. But if you looked even closer he was keeping the flow going through the joint session by taking micro steps this way and that playing for time. As my colleague Barbara Wilson says 'time is the mediator's friend'. 

    Some training organisations unfortunately can get a bit bolshie about having to follow the so-called x number of steps especially if they are into tick box accreditation. 

    The problem with the basic training is that is built on mediation theory that is not fit for purpose. All the basic mediation theories are one-dimensional and devoid of context.  Mediators work in a multidimensional space which is context specific to its time and place. We need mediation theories that match this.

    In one of my latest papers I have listed 17 new  theories that are  far more relevant to mediators and mediation than the one-dimensional theories of balance of power, just outcomes, neutrality et cetera. see:   Recreating Mediation Practice and Theory Afresh – Saying Goodbye to Roscoe Pound and the Legal Profession -

    Greg Rooney
    Bridgewater SA