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Cost Effective Dispute Resolution

Cost Effective Dispute Resolution. Alana Dowley Legal Services Director Contract Intelligence Pty Ltd. WHY ADR?. Cheaper and q uicker Flexible in process and outcome Considers commercial imperatives Maintains relationships Is private and confidential Must be preferred over trial

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Cost Effective Dispute Resolution

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  1. Cost Effective Dispute Resolution Alana Dowley Legal Services Director Contract Intelligence Pty Ltd

  2. WHY ADR? • Cheaper and quicker • Flexible in process and outcome • Considers commercial imperatives • Maintains relationships • Is private and confidential • Must be preferred over trial (even after litigation has commenced)

  3. Dispute Resolution Clauses • Notice of Dispute • Compulsory conference within 14 days • Automatic referral to Arbitration • IAMA appointment unless agreed • IAMA Rules unless agreed

  4. Commercial Arbitrators

  5. Legal v Technical • Legal arbitrator • Tends towards formal process • Requires adversarial expert evidence • Provides expertise available through the Courts • Technical arbitrator • Grounds for appeal • Misconduct of the proceedings • Error of law on the face of the record

  6. Commercial Arbitration Rules Institute of Arbitrators & Mediators Australia • Schedule 1: General Arbitration Procedure • Schedule 2: Fast-track Arbitration Procedure • 20 days each (consecutive) to provide: • Case statement • Evidence (including expert reports) • Submissions • On the papers if possible • Otherwise, hearing within 120 days of reference

  7. Industry Trend in Disputes Clauses • Mediation followed by litigation • Challenges for mediation: • Issues not yet defined • Lack of access to documents and information • Parties emotionally charged • No costs incurred yet • Litigation (with pre-trial mediation) • Challenges: • Early in the process? – Issues as above • Later in the process? – Too much invested already

  8. Civil Dispute Resolution Act (Cth) • Federal Court applications • incl bankruptcy and consumer protection • Applicants: genuine steps statement • efforts made to resolve dispute • Respondents: genuine steps statement • whether respondent agrees with statement • Consequences • Referral to dispute resolution • Dismissal, strike-out, or limitation to pleading • Adverse cost orders

  9. Supreme Court Mediation Rules • No listing for trial without mediation • Mediators: Registrars, Judge, private mediator • Court encourages early mediation • Solicitors are to inform clients on mediation • Costs: usually in the cause, however, adverse costs orders possible for lack of cooperation • Mediation in expert conclave can be ordered

  10. District Court Mediation Rules • Pre-trial conference at Entry for Trial stage • Registrar attempts to resolve dispute, narrow issues, direct further interlocutory steps • Process designed for personal injuries matters (insurance respondent) • Pre-trial may be adjourned to mediation (particularly for complex matters) • Early mediation vaguely encouraged

  11. Magistrates Court Mediations • Pre-trial conference before any formal steps • Registrar explores potential for settlement • Directions to progress matter if required • Pre-trial either adjourned or listing conference

  12. State Administrative Tribunal • Initial directions hearing: • explore settlement • directions to progress matter if required • Mediation will be ordered if appropriate • Trial dates are set notwithstanding mediation

  13. Construction Contracts - Adjudication • Payment claim made under Contract • Dispute arises on rejection / non-payment • Application within 28 days • Response within 14 days • Adjudicator appointed by registered body • Possible further steps: • View, expert, further submissions, extension • Determination within 14 days • Binding and enforceable but interim (not final)

  14. Applications for Adjudication From the Report of the Building Commissioner for the year ending 30 June 2011

  15. Adjudicator’s fees From the Report of the Building Commissioner for the year ending 30 June 2011

  16. Fast-Track Arbitration v Adjudication • Process remains flexible • Can be extended • Can incorporate mediation • Arbitrator • Chosen or appointed • Co-arbitration or referral to expert possible • Result • Binding and Final • Limited right of appeal

  17. Expert Costs in Arbitration • Eg: Approximate pre-hearing costs • Arbitrator $5,000 • Solicitor $40,000 • Counsel $15,000 • Expert witness $160,000 • TIMES by 2 ?WHY?

  18. Dispute Resolution Clause • Notice of Dispute • Compulsory conference within 14 days • Construction Contracts Act Adjudication? • Automatic referral to Arbitration after 28 days: • Co-arbitrators (one legal, one technical) • Mediate at prelim conference • Thereafter, Fast-Track IAMA Rules • No adversarial expert reports • Civil Dispute Resolution genuine attempt rules apply • Litigation reserved for urgent injunctive relief

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