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Dispute Resolution Processes
Overview
Disputes arise from time to time and need to be resolved fairly, cost effectively and with as little damage to ongoing relationships as possible.
Litigation can be appropriate in some cases. But it is not always the best, or even a viable, option.
Each process has particular strengths, which may make it the most suitable option for any particular dispute. It may even be best to use a combination of techniques eg mediation about some issues and expert determination about others.
Where the dispute concerns a claim in relation to construction work in
Western Australia
, the Construction Contracts Act, 2004 provides a rapid adjudication process.
It is important that the process chosen be directed to resolution of the real issues between the parties.
Arbitration
In an arbitration, the parties agree to appoint an independent third party, the arbitrator, to decide the dispute between them. Decisions of arbitrators (awards) can be registered at the Supreme Court and enforced like a court judgment. The grounds on which awards can be challenged are limited by law.
The parties control the procedure followed by an arbitrator. An arbitrator is usually not bound by the technical rules of evidence and can dispense with a formal hearing in appropriate cases. The arbitrator simply has to act fairly and give each of the parties an opportunity to put their case. Ordinarily, the procedure is less formal than litigation, which means it can be quicker and cheaper.
Arbitrations are private and confidential. Members of the public and the press can attend the hearing only if the parties agree.
 procedure | arbitration agreement | preliminary conference agenda | faq's
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Expert Determination
Expert determinations are like arbitrations in that the parties appoint a third party to determine the dispute. Unlike mediations and conciliations, the primary role of an expert is not to get the parties to reach an agreement.
Expert determinations are different from arbitrations in that an expert determiner is entitled to use his of her own knowledge in making the determination.
Expert determinations have traditionally been used to resolve single issue disputes, such as the amount of notice to which an employee is entitled on termination, or the value of land.
However, expert determinations are becoming increasing popular even with complex issues because the Commercial Arbitration Act 1985 does not apply expert determinations. This limits the prospects of challenges to the outcome or conduct of the determination process.
procedure | expert determination agreement | preliminary conference agenda | faq's
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Mediation
A mediator helps parties in dispute by working with them to negotiate an agreed resolution.
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The mediator does not decide the dispute, and generally will not even express an opinion about the merits. The mediator assists the parties in a structured way to:
identify the issues between them
recognise their own interests in the dispute
recognise the interests of the other parties to the dispute
negotiate an outcome which furthers those interests.
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Mediation often works best early in a dispute, before positions have hardened and before money has been spent on legal proceedings. It is particularly suitable where the parties have an ongoing relationship which they wish to preserve.
Because mediation does not focus on rights, mediated resolutions can be more flexible than court judgements. Because the procedure does not involve evidence, the process is quick, informal and inexpensive.Mediations are confidential to the parties.
If the parties reach a resolution at mediation, the settlement is put into a legally enforceable agreement.
procedure | mediation agreement | preliminary conference agenda | faq's
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Conciliation
Like a mediator, a conciliator does not have decision making power. A conciliator will assist the parties to reach an agreement, often through the procedures and techniques used in mediation.
However, a conciliator may also:
- give an opinion about the strengths and weaknesses of the parties' position, including a formal written opinion
- suggest terms for a resolution between the parties
- review an decision made by one of the parties
The views expressed by conciliators are not binding on the parties. A conciliator's opinion may, however, encourage the parties to resolve their dispute.
procedure | conciliation agreement | preliminary conference agenda | faq's
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Adjudication
“Adjudication” is the process for rapid determination of claims for payment for construction work in
Western Australia
under the Construction Contracts Act, 2004.
Adjudications are intended to be informal and based on documentation provided by the parties, rather than an oral hearing. Determinations by an adjudicator must be made within 28 days after an application is first made.
There are no “appeals” from determinations of adjudicators. Determinations by adjudicators may be enforced as a court judgment (with permission from the Court). However, a determination by an adjudicator does not prevent the parties re-arguing the issues in arbitration or litigation proceedings. Any amounts paid under a determination must be taken into account by the court or adjudicator in working out the final liabilities of the parties.
procedure | adjudication terms and conditions | faq's
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