Answer ONE question from Part 1 and ONE question from Part 2.
Word length is 1000 – 1150 per question – You must indicate exact length
1. Commercial dispute resolution occurs within areas such as taxation, owners’ corporations and the financial system. In each case the business or commercial context forms and shapes the conflicts and disputes which arise and also the kinds of dispute resolution used to address them.
In relation to two of the above areas discuss the context of the disputes that might arise and describe the CDR processes used for their resolution. Give your views on the effectiveness of the DR processes and what improvements might be made.
2. There are close interactions between mediation and other forms of CDR, on one hand, and, on the other,the formal justice system supported by courts and tribunals. These factors can tend to blur the distinctions formerly claimed between litigation and mediation.
Identify some of the structural connections between the litigation and mediation systems in current Australian dispute resolution. Discuss critically what impact each might be having on the other. Conclude with your own analysis of what kind of justice is provided by the two systems interacting together.
3. In commercial dispute resolution involving international contracts, international investment and international trade the legal enforcement of outcomes is made difficult by sovereign immunity barriers.
In relation to one of the above three commercial areas describe the potential obstacles to enforcement of outcomes across jurisdictional boundaries and how these obstacles are, or might be, dealt with. Compare this area briefly with enforcement in one of the other three areas mentioned in the first paragraph.
4. The Global Pound Conference of 2017 brought together views and attitudes from across the globe on common commercial dispute resolution issues. These came from providers of CDR services, users, legal representatives and others.
Identify what you consider important insights provided by the GPC survey information in respect of either users of CDR or their legal advisers. Explain why you think the information is significant and compare it critically to relevant theories and practices of dispute resolution.
5. During the course of this subject you have engaged in various dispute resolution exercises and simulations, observed dispute resolution proceedings and heard about different dispute resolution case studies.
In a reflective essay identify three specific experiences from the course and link each critically to relevant theories and principles of commercial dispute resolution. Provide a brief conclusion on what significance you think the three examples you have discussed might have for you in legal or professional practice.
6. Insights from cognitive psychology, behavioural economics and neuro-science are currently being considered by judges, practitioners and students in Australia. They tend to challenge long-standing assumptions about the rationality of human decision-making in different contexts.
Identify three specific insights from one of the above disciplines, explain their nature and significance, and discuss critically their potential implications for negotiation behaviours in commercial contexts.
The structural connections that exist between mediation and litigation
Majority of the commercial disputes in Australia are resolved by litigation process and thus has emerged as a well-known method of Alternate Dispute Resolution. In certain scenarios of commercial disputes, the disputing parties might agree on focusing on certain aspects of the conflicts by an expert. Similarly, in case of mediation, the role of the mediator is to facilitate the process of dispute resolution in order to effectively manage the process . Therefore, assistance is provided by a third party in both the process of
Litigation process involves a huge amount of investments in regard to the time since the filing of the case in the court cannot be monitored by the parties. Therefore, the parties need to be prepared for engaging the time required to attend the court proceedings. Although mediation does involve court proceedings, the meetings that are scheduled between the parties having the dispute generally are multiple. Therefore, in order to generate the solution that takes into account the opinions and interests of both the parties, ample amount of time need to be invested.
In both the processes, there is a third party intervention. In case of mediation, the mediator is the third party that intervenes to resolve the dispute. It is the responsibility of the mediator to schedule the meetings between the parties. The mediator needs to hear the opinions of both the parties in order to generate a solution that is agreed upon by both the parties . Almost a similar scenario exists in the litigation process where the individual lawyers of both the parties present their perspective on the issues in front of the court. The judge takes into account all the evidence that is presented in relation to the arisen dispute and delivers his judgement on based on those facts.
Critical analysis of the impact
In various situations, when litigation process works in collaboration with the mediation process, the lawyers tend to become a component of the process that is dysfunctional. This occurs when the influence of the mediators is not appreciated by the lawyer. Moreover, the lawyers are required to adapt accordingly to the influence that the mediator has in the process. When they fail to adapt in accordance with the mediation scenario the dysfunctional nature of the lawyer is highlighted. Moreover, the participation of the clients is also adversely affected by the lawyers. Along with this, the purpose of the mediation is also hampered due to the hindrances that the lawyers' intervention creates. The control of the parties is significantly decreased due to the presence of the lawyers. Moreover, in addition to this issue, the focus of the mediation process on the needs that are extra-legal is also significantly reduced. However, despite these ramifications, the legal presence in the mediation process is often demanded. The reason for which this aspect finds itself included is that mediation process is often enveloped in unequal bargaining . In relation to this aspect, the lawyers appear to be capable of combating the bargaining situation. Moreover, the parties are often a victim of assertive mediators. In this regards the lawyers are capable of protecting the weaker party and encourage their participation.
Therefore, the intervention of the lawyers acts as a stabilization method in this particular scenario. Moreover, the lawyers also have the potential to ensure that the facilitative approach or the evaluative one are adopted in the process of dispute resolution . The evaluative approach disrupts the feature of neutrality of the mediator and renders major focus on the legal claims.
Justice provided by the interactions of the two systems
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In my opinion, the commercial dispute cases such as the dispute between the contractor and the intermediaries, land dispute cases and other. The verdicts can be given for civil litigation cases in which the parties tend to state financial claims. Moreover, in cases of patent litigation this is caused due to the infringement of the patent copyright clauses. Business litigation cases can also be resolved which is otherwise known as commercial litigation.
The expert determination which is the probable consequence of litigation has been effectively demonstrated in the case of Shoalhaven City Council vs Firedam Civil Engineering Pty Ltd., the appeal that was presented in the NSW Supreme Court by Firedam since they were not satisfied with the initial judgement . The date of completion of the construction project that was handed by Shoalhaven to Fireman could be extended by Firedam. However, if Firedam failed to complete the project despite the extended time span, Shoalhaven had the authority to acquire the liquidated damages. Firedam had failed to complete the job and was charged by Shoalhaven to pay for the aforementioned charges. The expert determination was referred to Neil Turner by both the disputing parties. The findings of the expert stated that Firedam needs to partially receive the payment for the damages which Shoalhaven was entitled to pay. The amount decided by the expert was considered unsatisfactory by Firedam. The appeal was presented which was ultimately declined to hold the expert's decision to be in accordance with the clauses of the contract.
Moreover, franchise disputes, family disputes, divorce cases can be mitigated by mediation. For instance, the franchise dispute between Sprinkles Cupcakes and Aldo and Hettie can be considered as the case example of mediation . The franchisee Aldo and Hettie intended to be a separate franchise which the Sprinkle cupcakes did not agree with and the mediation process needed to be initiated in accordance with the Franchising Code of Conduct. Initially, the situation was such there was a necessity to insert a clause in the renewal agreement. Separate sessions were held and the workable options were identified. The removal of the clause from the agreement was decided to be the only possible solution for both the parties. The success of the dispute resolution process lies in both the parties agreeing to a common solution even if it was previously considered to be unsatisfactory.
The important insights provided by the GPC survey
I found that the survey demonstrated that prior to the commencement of the procedure of dispute resolution; the disputing parties tend to focus majorly on the finances associated with the process. Moreover, in association with this aspect, the feature of action-focused nature of the process has been ranked among the top priorities along with finances. These priorities are of the disputing parties as well as the advisors, adjudicators and other such personnel.
The expectations from the processes of dispute resolution mainly include efficiency and advice from the legal advisor or lawyers. The results also demonstrated that the recommendations provided by the lawyers are highly dependent on the individual’s familiarity with the type of resolution along with the nature of the outcome desired by the party. In association with these two factors, the fees charged by the lawyers are also a deciding factor.
The survey results also showed that in the majority of the cases, the disputing parties are not aware of the preferences and asks the legal advisors to state the optimal method for resolving the issue. Therefore, it is the advice providers who ultimately decide the method to resolve the dispute. Moreover, it was also seen that the disputing parties want the provider to speak on their behalf. Along with that, the fact that a significant number of parties want the provider to ensure an effective collaboration and undertake decisions as per the requests of the disputing parties.
The results also showed that the outcome of the process is dependent on the subjective interests of the disputing parties. However, in case of adjudicators and advisors, the laws and the norms are the determining factors of the ultimate outcomes.
It was also found that it is the responsibility of the in-house and external lawyers to ensure that the disputing parties are well aware of the possible consequences associated with every process along with the available process options.
Non-adjudicative methods have gained popularity regarding a resolution method. In certain scenarios of commercial dispute, the combination of the non-adjudicative process with the adjudicative process was also found to be considered as a resolving option.
The major hindrances in regard to the process of commercial dispute resolution that was identified by the survey results include the constraints related to time as well as finances. Along with this, the insufficient knowledge regarding the options of dispute resolution is also a critical factor.
The survey results portrayed that attending the pre-dispute scenarios is capable of preventing the rise of the disputes. Moreover, the combination of mediation along with arbitration is capable of improving the scenario of dispute resolution.
The practices that are involved in the dispute resolution process include mediation, conciliation and negotiation. The adjudicative processes include litigation or arbitration. The litigation process involves the legal proceedings and hence ample amounts of investments are associated with the proceedings. Therefore, when in comparison with the non-adjudicative processes such as mediation, the associated costs of the process are less . Hence, in my opinion, the disputing parties tend to be inclined to these options due to the lesser amount of financial hassles. Moreover, the requirements and needs that the disputing parties desire are fulfilled by the aspect of action focused nature of the process. The litigation process makes utilization of the expert determination and hence the efficiency demanded by the disputing parties tends to be addressed by this process. In my opinion, the disputing parties tend to consider the mediation process time consuming since repeated meetings of the disputing parties need to be carried out. It is due to this reason; I think that the disputing parties doubt the efficiency of the process. However, I have deemed the findings regarding the most opted method of dispute resolution to be an important one since it showed that the non-adjudicative processes have gained popularity as a dispute resolution method. The solutions that are thus devised are in accordance with the Litigation and Dispute Resolution 2017 . Since mediation process offers greater control regarding the proceedings when in comparison with arbitration . It is better to have a say in the solution decided for a dispute rather than a solution being enforced by the court. Moreover, the mediation process encourages the aspect of openly communicating and bringing forward creative solutions . Along with this negotiation also highlights the feature of open communication. Whereas the arbitrators take into account the evidence put forward by both the disputing parties and gives the decision in compliance with the International Arbitration Act of 1974 .
Moreover, the results that were obtained regarding the awareness of the intricate features of the process is also important since the dispute resolution process in Australia needs to abide by the clauses of the Commercial Arbitration Act of 2017 . The clauses and the regulations that are present in the Act need to be abided by the arbitrator that takes the decision. Section 35 and Section 36 controls the proceedings associated with the arbitral awards. In my opinion, it is the responsibility of the legal advisors or the lawyers to explain the disputing parties the legal implications and the clauses that the aforementioned Act. It is essentially important since the expectations of the disputing parties from the process need to be in accordance with the statements in Section 35 and 36 of the Act.
Mediation is a procedure that takes into account the interest of both the parties in order to reach a solution that both the parties agree . Therefore, according to me, mediation is the process that complies with the survey results which shows that the parties require the lawyer or the legal advisor to work in collaboration throughout the resolution process.
However, the importance of pre-litigation measures was also highlighted in the findings of the survey. In my opinion, these measures have the potential of significantly bringing about a significant efficiency in the commercial dispute resolution process.
Thus, the findings of the survey provided the required insight to critically evaluate the practices associated with the dispute resolution methods prevalent in Australia such as arbitration, mediation and litigation.
Australian Disputes Centre (April 11, 2018)
Case Studies: Mediation and FDR Mediation (April 11, 2018)
Commercial Arbitration Act of 2017 (Cth)
Dispute Resolution at the Small Business Commissioner of NSW (April 10, 2018)
Douglas, K. and Hurley, J.,. The potential of procedural justice in mediation: a study into mediators understandings. (2017) Bond Law Review, 29(1), 5.
International Arbitration Act of 1974 (Cth)
Litigation and Dispute Resolution 2017 (Cth)
Moser, H.,. Mediation in the family court of Western Australia. (2016) Brief, 43(4), 20.
O'Sullivan, M.,. The Structural Causes of Workplace Conflict: Understanding the Implications for the Mediation of Workplace Disputes. (2017) Bond Law Review, 29(1), 6.
Popa, T., All the way with ADR: Further endorsement of ADR in litigation. (2015) Australasian Dispute Resolution Journal, 26(4), 218-225.
Ryan, P.,. Alternative dispute resolution: Court-referred ADR: Judicial perceptions. (2018) LSJ: Law Society of NSW Journal, (42), 90.
SHAOLHAVEN CITY COUNCIL V FIREDAM CIVIL ENGINEERING PTY LIMITED  HCA 38