Dispute Solutions - Services
““Peace is not absence of conflict, it is the ability to handle conflict by peaceful means”
- Ronald Reagan
Dispute Solution Process Stages
At Dispute Solutions we “handle conflict by peaceful means”, where “peaceful” involves skilful, practical, problem solving.
Every dispute solution process has 4 major stages:
Stage #1 - Intake (Assess Needs)
1.1 Initial Contact
If you have a problem right now, please pick up the phone and call us (0414 816 789), to explore your options. It’s strictly confidential, and 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.
Are the issues primarily: Practical, Technical, Legal or Relationship-focused?
Do the parties need to: (a) rebuild a relationship; (b) develop their own Agreement; (c) receive a Binding Determination, or have the option of (a+ b + c)?
Does the process need to be: Advisory; Cathartic; Facilitative; Collaborative; Inclusive; Authoritative; Determinative, or something else?
Stage #2 - Plan & Design Process
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. An Agreement ends the process, provided it covers all issues.
A voluntary agreement is the end goal of most Facilitations, Mediations and SODR. 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 Evaluation Report, designed to honestly inform everybody about technical issues, and their legal implications.
This helps to avoid “duelling experts”, where otherwise irreproachable 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: “Everybody can’t 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 - 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 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 area of the dispute. Their awards respond to the technical and legal aspects of the dispute, with a focus on technical issues.
Judicial Arbitrations are run by senior lawyers and retired judges who preside over a more court-like process. Their awards also respond to the technical and legal aspects of the dispute, with an emphasis on judicial thinking.
Stage #3 - Manage the Process
All parts of the process are delivered and managed by the Dispute Resolver. Advance planning and regular communication help to avoid surprises.
Dispute Solution Processes
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.
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.
Pros: Quick, flexible, cost-effective, and relatively relaxed. 50%-80% success.
Cons: Parties must agree to participate in the first place. No guarantee of a final outcome.
SODR (Solution-Oriented Dispute Resolution)
SODR is an end-to-end dispute resolution system that produces quick, fair, practical, cost-effective, legally enforceable outcomes. It works well for almost all types of dispute.
SODR combines the most effective features of: (a) Facilitative and (b) Determinative dispute resolution into a single, 3 phase progressive process, comprising:
(1) Facilitation > (2) Legally Binding Determination > (3) Independent Decision Making
Facilitation: shares the core mechanics of Mediation - the Facilitator guides the process and helps the Parties to develop a negotiated agreement.
Enforceable Determination: if negotiation doesn’t work, the Facilitator makes an enforceable Determination.
Independent Decision: if all Parties reject the Determination, the dispute is referred to a neutral, Independent Decision Maker for a legally binding Decision.
Confidential, practical, quick, flexible, responsive, and very time/cost-efficient.
Parties cannot bail out, unless all agree to do so.
Mediation : SODR Comparison
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.
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.
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.
Binding 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.
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.
Nothing of significance.
Arbitration (Expert and Judicial)
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.
Familiarity with technical issues and arbitration processes makes Expert Arbitration an authoritative, efficient and cost-effective process.
Nothing 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.
Familiarity with specialised areas of law and arbitration processes makes Judicial Arbitration a very authoritative process.
Can become too legalistic, slow and expensive to appeal to business people.
Stage #4 - Conclusion
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.
Conflict Prevention Services
Conflict can create huge delays and cost blowouts on major projects. Contract Facilitation is used on hundreds of major contracts around the world. It’s now available here.
Contract Facilitation Services
Contract Facilitation Services (“CFS”) improve contract performance, prevent disputes, and reduce overall costs, by embedding one or more skilled facilitators inside a contract, from the get-go.
CFS is especially well-suited to major construction, infrastructure, and other large and complex public or private contracts where they can save enormous amounts of money by keeping contracts on track, facilitating prompt payments and preventing conflicts.
Performance efficiency and project value are increased through:
(a) Regular communications and meetings to enhance contractor relations and,
(b) Concerted efforts to establish and maintain a positive, problem solving project culture and,
(c) Regular reporting to facilitate on-time service delivery and payments and,
(d) Early intervention to prevent actual or potential project disruptors from developing into claims, disputes or conflicts.
All Contract Facilitators are experts in relevant areas of contract activity: project management, engineering, construction, IT, architecture, finance and law, as well as being expert facilitators.
Our network of trustworthy experts can be quickly called up if an objective technical opinion is required on any issue.
CFS fees are fixed, at the outset, for the life of the project. This encourages team members to do everything possible to ensure that no significant conflicts occur.