Dispute Solutions - Services
Dispute Solution Process Stages
Every dispute solution process has 4 major stages:
Stage #1 - Intake (Assess Needs)
1.1 Initial Contact
It takes courage to start a dispute resolution process, especially when family are involved. You need to believe that the process will make things better.
Best Case: Somebody sees things going wrong, and proactively seeks help before things get too bad.
Worst Case: Things get so bad the business, the family, or relationships are at breaking point - so anything is worth a try. Reacting is better than doing nothing but, the later you wait, the harder it is to fix things.
If you have a problem right now, just pick up the phone and call us here to explore your options, in strict confidence. There’s no obligation to do anything until you’re ready.
1.2 Triage - Personal and Situational Needs
Like a medical facility, we “triage” (separate and sort) all disputes at intake to assess personal and situational needs, and work out the best possible response.
What do you need? The dispute resolution process you choose may make a big difference to the outcomes you achieve.
Nature of issues - scope, scale and urgency.
Objectives - personal and financial/commercial.
Individuals and relationships.
Budgets and resources.
Stage #2 - Plan & Design Process
2.1 Nature of Issues
Does the dispute need a practical, technical, legal or relationship-focused approach?
Practical Issue Focus - parties don’t care about technicalities, they just want their issues resolved with as little pain and damage, and as fairly, quickly and economically, as possible.
Recommended Process: informal, collaborative processes - Facilitation and Mediation.
Technical Issue Focus - the main issues are physical, factual or technical, rather than legal. Focus on the issues, and keep the legalities in the background.
Recommended Process (1) “Simple” technical issues: use a skilled expert with good dispute resolution skills to run an informal, facilitative process - Facilitation or Mediation.
Recommended Process (2) “Complex” technical issues: use a skilled expert with excellent dispute resolution skills to run a technically-oriented, decisional process - Expert Decision, Expert Determination or Expert Arbitration.
Legal Issue Focus - facts and technical issues are less important than legal implications and consequences. Focus on legalities and keep technical issues under control. Avoid “duelling experts”.
Recommended Process (1) “Simple” legal issues: use a skilled lawyer with good dispute resolution skills to run a relatively informal, facilitative process - Facilitation or Mediation.
Recommended Process (2) “Complex” legal issues: use a skilled lawyer with excellent dispute resolution skills to run a legally-focussed decisional process - Legal Determination or Judicial Arbitration.
Relationship Issue Focus - human factors include: emotion, loss of respect and trust, perceptions vs reality, differing personalities, and troubled relationship histories. These disputes aren’t easy, or quick to resolve! The dispute resolver needs plenty of patience, time, timing and empathy to drill down to the root causes of these conflicts.
Recommended Process: informal, flexible, collaborative and cathartic processes that can go wherever they need to go, whenever they need to go there - Facilitation and Mediation.
2.2 Process Objectives
After establishing participant needs, objectives and required outcomes, we design and recommend an appropriate, efficient and cost-effective process, with estimates of costs and suggestions for timing, locations for meetings, and other logistics.
2.3 Process Outcomes
Dispute solution outcomes range from informal acknowledgements, through voluntary agreements, to formal arbitration awards, enforceable through the courts.
Voluntary Agreement - Consenting adults can agree to settle any dispute, at any time. Agreements stop all processes, provided they cover all issues.
A voluntary agreement is the end goal of most Facilitations and Mediations.
Agreements are written, signed by participants, and witnessed by the solution provider.
A good agreement is whatever everybody agrees it should be, to end the dispute.
Case Appraisal (Expert) - an expert, agreed by the participants, produces an unbiased report, designed to honestly inform everybody about technical issues, and their legal implications. It helps avoid “duelling experts”, where otherwise responsible professionals are pressured to argue that: “black is black, green, white, or …. whatever you need it to be”.
Case Appraisal (Legal) - a senior lawyer, or a retired judge, evaluates the legal aspects of a case that’s on its way to trial. Legal Appraisals provide a reality check on the overly-optimistic opinions often received by all parties from their respective advisers: “you can’t all have a 70% likelihood of success!”
Independent Decision - informal decisions made on any issue by anyone the participants choose to appoint. Authority is given by contract.
Decisions can be legally binding, or not, and should always be fiercely practical. This process should be very quick and cheap.
Binding Determination (Expert / Legal) - a no fuss, flexible and private contractual appointment made by disputing parties. Expert Determinations can be used to resolve most types of dispute and are often found in formal contracts where the application of specific formulas is required (eg: sale of a business).
Expert Determinations suit technical disputes (eg: building defects). Legal Determinations suit legal issues (eg: application of Trade Practices law). Both are delivered as written reports, with legally binding conclusions on all referred issues.
Arbitration Awards (Expert / Judicial) - arbitration is underpinned by specific legislation that requires arbitrators to produce quick and cost-effective written decisions, called “awards”, that are legally binding, and can be enforced through standard Supreme Court mechanisms (eg: sheriffs).
Expert Arbitrations are run by experts in the field of the dispute. They produce concise, technically-oriented awards, according to law.
Judicial Arbitrations are run by senior lawyers and retired judges who preside over a more court-like process. Their awards are more like judicial rulings.
Stage #3 - Manage the Process
All processes are transparent, carefully managed and quality assured, to avoid surprises.
Facilitations are assisted discussions that can be used for working through just about anything.
Facilitation means “to make things easier”. Facilitators help people work stuff out by keeping things civil, positive and focused.
As it has no prescribed boundaries, in expert hands Facilitation can be a great way to encourage joint problem solving, conduct difficult conversations, and resolve sensitive issues.
Pros: Confidential, quick, flexible, relaxed, responsive and cost-effective.
Cons: Parties must agree to participate, and there’s no guaranteed outcome.
Mediation (ADR and EDR)
Mediations are guided negotiations that help individuals, families, businesses and organisations work their way through disputes and conflicts, and agree how to resolve them.
Mediation can help to resolve almost any problem, dispute or conflict - treating them as problems to be solved, rather than as battles to be fought. This approach creates a constructive mindset - precisely what you need when important relationships are involved.
Mediators act as process managers to:
(a) help parties identify real needs, interests, issues and problems;
(b ) identify points of difference and conflict;
(c) work through differences, and
(d) develop options to resolve physical, technical, legal and relationship issues.
A successful mediation results in a written agreement describing what the participants are going to do, or not do, both now and in the future, to both resolve their dispute, and to keep it resolved. The Mediator witnesses the agreement.
We offer 2 styles of Mediation: Conventional ADR (Alternative Dispute Resolution) and evolved EDR (Effective Dispute Resolution). Parties choose whichever suits their needs.
The core mechanics of both processes are identical. At the pointy end, EDR mediators are more robustly engaged in solution development, and EDR Mediation almost guarantees a legally binding outcome.
In contrast, ADR Mediation relies on participant stamina and goodwill, to reach a conclusion.
ADR Mediation (Alternative Dispute Resolution)
Conventional (ADR) Mediators are process facilitators who don’t provide technical or legal advice, or make decisions on anything other than the process. Participants have no obligation to remain in the process, or to agree to anything; so there’s no guarantee of a final outcome. This empowerment is both a strength and a weakness in the process.
Most mediations (50% - 80%) achieve settlement of claims. However, settlement is often just financial, with the main driver being fear of the consequences of not settling, rather than satisfaction that a good deal has been worked out. The long-term consequences of such agreements, especially where continuing human interactions are involved (eg: families and workplaces), are usually sub-optimal, or worse.
The real goal for Mediation is resolution of issues. In this, the underlying causes of the dispute or conflict are identified and addressed, which creates more durable solutions, by helping to repair damaged relationships within the process.
ADR Pros: Quick, flexible, cost-effective, and relatively relaxed. 50%-80% success.
ADR Cons: Parties must agree to participate in the first place. No guarantee of a final outcome.
EDR Mediation (Effective Dispute Resolution)
We developed EDR Mediation (Effective Dispute Resolution) when starting to work on family conflict and family business conflict, over 20 years ago. We recognised that these situations needed much more focus on underlying personalities, individual needs and relationship histories, than the conventional commercial disputes we’d been successfully resolving for many years.
We saw it taking only one “unhappy” family member to derail the whole family, and the whole process - which actually made things worse than if we’d never started. So, we built a better mousetrap!
EDR Mediation utilises all of Mediation’s strengths, while avoiding its two major weakness - inability to keep participants in the process and the risk of not achieving a final outcome.
We explain ADR and EDR Mediation during the Intake process. We recommend EDR, when appropriate. Participants are free to choose. The main differences are:
EDR can almost guarantee a final outcome (voluntary or imposed).
No bailouts allowed - the parties agree at the outset, in writing, that they will stick with the process until it reaches a final conclusion.
Agreement or Decision - if the issues aren’t resolved by agreement, the Mediator becomes a Decision Maker. They produce a concise written decision on the issues, with brief reasons. The participants are contractually bound by that decision.
If all participants reject the Mediator’s decision, it becomes null and void. Then, unless all parties agree to stop, the dispute is referred to an Independent Decision Maker ("IDM") for a legally binding decision. The IDM may require a brief hearing, written submissions, or both, before they make a decision - from which there is no appeal.
EDR Pros: Quick, flexible, relatively relaxed and cost-effective. Final, binding outcomes are guaranteed, unless all participants agree to abandon the process.
EDR Cons: Parties must agree to participate in the first place. They agree to pass the ultimate power of achieving resolution to the Mediator / Decision Maker, but only if they can’t get there themselves.
Mediation: ADR and EDR
Often, every party in a litigation has been told they have a 70% chance of success. The maths doesn’t work, but it does keep them in the process!
An objective Case Appraisal provides a powerful reality check on each party’s real prospects for success, in any dispute process. It can save enormous amounts of time, effort, cost … and face.
Appraisals also help to avoid wasting time and money on “duelling experts”. Agreeing on a single expert stops each party from engaging their own experts who, despite the best ethical intentions, often feel pressured to “sing for their supper”.
Case Appraisal (Legal) - objective, advisory, judicial-style evaluations of the strengths and weaknesses of legal cases. A senior lawyer, or retired judge, evaluates the case, after hearing submissions and reviewing documents. They produce a concise verbal or written report indicating how they believe the case will play out in court.
Case Appraisal (Technical) - objective, advisory, expert evaluations of technical issues (eg: business valuations), under any circumstances, including litigation proceedings.
Parties can then decide how to proceed, before committing further effort and expense.
Pros: A formal Appraisal is the quickest and most economical way for all parties to a dispute to obtain an unbiased professional opinion on any or all issues in doubt, including likely prospects for overall success.
Cons: Confidentiality Agreements notwithstanding, formal Appraisals can provide unscrupulous disputants with additional information and ammunition for use in later negotiations, or litigation. Generally, this risk can be managed and is vastly outweighed by the upside benefits of the process.
Independent Decision Making (“IDM”)
Independent Decision Making is a simplified dispute resolution process, designed for normal people, who want an independent, competent and credible person to help them resolve their dispute as quickly, cheaply, fairly and responsibly, as possible.
The IDM has power, under contract, to make legally binding decisions on specific issues. Being a private contractual process, the parties can make this work anyway they see fit.
Pros: Confidential. The quickest, most flexible, practical, informal and inexpensive way of getting legally binding decisions on any issues.
Cons: Lack of rules, precedents and supervision can reduce predictability of outcomes to an assessment of the personality and skills of the dispute resolver.
Expert Determination (Legal)
This version of the Expert Determination process sees a senior lawyer, or a retired judge, appointed under contract by parties to a dispute, to make a legally binding decision on specific legal issues.
The Legal Determiner is an expert in the relevant area of law and has a good understanding of dispute resolution in general, and of the Expert Determination process, in particular.
The Determiner’s powers and process are subject to legal precedent and professional rules of conduct.
Our standard Determination Agreements empower our Determiners to do whatever, within reason, they believe will best help them gather and assess the information they need to make credible determinations.
In all cases, written reports are issued, with clear decisions, supported by brief reasons.
Pros: The process is focused, businesslike, autonomous, and very efficient. An independent perspective on technical and legal issues can save an enormous amount of time and money.
Cons: Nothing of significance.
Arbitration (Expert and Judicial)
Choosing Arbitration is like hiring a private judge to decide a dispute. It’s a well-established process, supported by comprehensive legislation, and a huge body of local and international practice. It even enables parties to use the courts for enforcement!
Arbitration can be used for all types of dispute, from small to large, and from local to international. Regrettably, it’s rarely used for small disputes in Australia although, in the right form, it works very well in that environment.
The Arbitration process was originally commissioned by Mediterranean merchants who wanted to spend their time running their businesses, rather than fighting legal battles. They also wanted to keep their disputes confidential, to protect their reputations. Consequently, they used experts from their own industries as arbitrators.
Arbitrators have broad powers to obtain information and evidence, and to manage their processes, to achieve maximum efficiencies and cost-effectiveness.
Expert Arbitrators are experts in the subject matter of the referred dispute, as well as being expert dispute resolvers. They understand commercial environments and run their arbitrations, as much as possible, in a businesslike way. Their primary focus is on understanding the commercial and technical issues in the dispute, in context. Their decisions are made according to law, mixed with a strong dose of commercial reality.
Pros: Familiarity with technical issues and arbitration processes makes Expert Arbitration an authoritative, efficient and cost-effective process.
Cons: None of significance.
Judicial Arbitrators are lawyers or retired judges with expertise in the law, and in dispute resolution. Typically, their processes are more courtroom-like than businesslike, and their primary focus is more on legal, than technical issues. They need more expert input into technical issues, which tends to increase the scope, scale and expense of their proceedings - sometimes making them no faster or cheaper than court proceedings.
Pros: Familiarity with specialised areas of law and arbitration processes makes Judicial Arbitration a very authoritative process.
Cons: Can become too legalistic, slow and expensive to appeal to business people.
Stage #4 - End Process & Document Outcomes
Dispute Solution outcomes range from satisfaction that a dispute or conflict has been resolved, to Voluntary Agreements to do, or to not do something, to legally binding arbitral awards that can be enforced by Supreme Courts throughout Australia.
Voluntary agreements are signed by the parties and witnessed by the Dispute Resolver.
Binding decisions, determinations and arbitral awards are put into writing, and signed by the Dispute Resolver.