Procedure

Arbitration, expert determination, mediation and conciliation are all based on the agreement of the parties.

Frequently the procedure for appointment of an arbitrator, expert, mediator or conciliator (“the third party”) will be set out in a pre-existing contract between the parties. The contract may also set out some of the steps to be followed by the third party during the course of the reference. If this is the case, the contract must be adhered to.

It is common for agreements to provide for an independent body to nominate an independent third party if the parties cannot agree. Nominating bodies include the Institute of Arbitrators and Mediators Australia (IAMA) and LEADR.

It is common for there to be a preliminary meeting or conference involving the parties before the proceedings get underway. Typical agendas for arbitrations and mediations can be found here.

Nominating bodies, such as IAMA and LEADR, frequently have standard procedural rules or guidelines regulating dispute resolution processes.

Mediation Procedure
The procedure for mediation is very flexible and depends on the wishes of the parties.  However, there are a number of common features of mediation proceedings:

• There will probably be an initial meeting or conference at which the future conduct of the mediation will be discussed. 
• The parties may prepare and exchange “position papers” setting out their views of the issues and the interests of the parties.
• The mediator may have discussions with the parties separately.  The mediator may have separate discussions with the parties’ legal representatives.
• The will be a meeting attended by the parties at which the issues will be discussed and a resolution may be reached.  More than one meeting may be necessary.

Frequently the procedure for appointment of a mediator will be set out in a pre-existing contract between the parties. The contract may also set out some of the steps to be followed during the course of the mediation. If this is the case, the contract must be adhered to (unless the parties all agree to change it).

Ajudication Procedure
The procedure for an adjudication under the Construction Contracts Act, 2004 is largely laid down by that Act and the Construction Contracts Regulations, 2004.  Parties to an adjudication need to examine the provisons of this legislation.  An outline of the procedure is:

1) An application for adjudication must be made within 28 days after a “payment dispute” arises.  The application must be served within that time.  The application must comply with the Act and the Regulations and must contain all materials upon which the applicant will rely.

2) If the choice of adjudicator is to be made by an approved appointor, the appointor will nominate an adjudicator within 5 days.

3) The adjudicator will probably hold a preliminary conference, in person or by telephone, shortly after accepting the nomination.

4) The respondent must file and serve a response within 14 days of service.  Again the response must comply with the Act and Regulations and must contain all materials the respondent relies on.

5) If the adjudicator does not have sufficient information to make a determination, the adjudicator may

• request the provision of further information or for the parties to attend a conference
• inspect the work
• arrange testing
• engage an expert.

6) The adjudicator must make the determination within 28 days after the application is served (unless the parties agree to an extension of time).

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