DISPUTE RESOLUTION PROCESSES
Within each Dispute Resolution process, there are numerous variations in the following areas.
- The length of the process and the formality that is present. For example, mediation about a complex banking dispute may involve lawyers and financial experts and the preparation of documentation and be conducted in a more formal manner than a mediation that only involves two parties and limited issues.
- Where processes incorporate different elements. For example, in evaluative mediation the primary approach may emphasise mediation skills. However, panel members may be required to provide advice about other matters or indicate where they consider that the litigated outcomes will vary from those presented by representatives.
- The role of the panel members. In co panel matters, the panel member may consider the legal issues in consultation with associate panel member who may have expertise in particular subject areas (such as financial, construction, aviation or IT issues).
- The role of the parties. For example, who contributes to the discussion – the parties, their advisers, experts or lawyers contribute – or all? The needs and expectations of the parties may also impact upon the process. These are clarified in the Endispute dispute management and intake stage so that the process meets the needs and interests of the parties.
- The subject of the dispute (this will impact upon the choice of panel members and the process options). Enforceability of the outcome is also carefully considered.
- The Review requirements. Review requirements will generally only be available where determinative processes that produce binding outcomes are used and where parties wish to consider using an appellate panel process.
Despite these variations, the processes used by Endispute can be mapped in general terms as follows.
This term can apply to a variety of different processes and procedures. Often, facilitation simply applies to a process where a person chairs a meeting or involved in conference. In relation to the Endispute process, the facilitator plays a different role. The facilitator is a neutral person whose role is to assist parties to clarify issues in dispute and move matters to a pre stated conclusion (for example, an outcome – not specified – is to be reached) with the assistance of an agenda. Panel members who facilitate may also assist parties to develop options and suggest the inclusion of other dispute resolution processes where appropriate.
Increasingly facilitators have been employed in assisting in public policy disputes, in the land and environment context, and the large scale organisational change context. Some large companies use facilitators to assist in planning and development. Others use facilitators to ensure that corporate entities and senior management teams – develop, plan and progress effectively.
Definitions of mediation are often brief and primarily refer to the facilitative nature of processes. In practice, very different forms of mediation process are utilised. The primary difference relates to the role of the mediator. Endispute uses a range of different forms of mediation – facilitative, issue and evaluative mediation.
In facilitative mediation, the process is directed at ensuring that all issues are explored before options are developed by the parties and interest based negotiation is supported. Often mediation can be used to provide parties with an opportunity to obtain expert advice (from experts) about their prospects of success should the matter proceed to further litigation and information about litigation and other costs. The conflicting nature of advice given to parties by their experts can also be highlighted. Facilitative mediation can for example be coupled with an independent expert process who can advise the parties about particular issues. In this process-oriented model there is an assumption that parties hold the solution to their dispute and the mediator is the facilitator of that process rather than acting as an authority figure providing substantive advice.
In issue and evaluative mediation, the mediator is active in making recommendations and furnishing advice to the parties. The panel mediator in the Endispute evaluative mediation process is an experienced and highly regarded authority figure who evaluates the case based upon his or her experience and offers recommendations on how the case should be resolved.Models of mediation may vary in other ways. At Endispute we will tailor the process to suit the clients' needs.
There are a number of different legislative definitions relating to evaluative processes, including references to processes such as early neutral evaluation and case appraisal. Evaluation in all of its forms will usually involve the giving of an opinion by an evaluator as to the likely outcome of a dispute should it proceed to trial. In most instances at Endispute the evaluation process will only bind the parties to the outcome if the parties agree to be bound.
In some models the view expressed by the evaluator may bind the parties if they do not object to the evaluator’s decision. Some types of mini-trial can offer a similar process. In those processes, a panel member may act as an expert, hear a dispute (in an abbreviated form) and provide a non-binding decision. If a further process follows another panel member or group panel will preside over it. These approaches are agreed with the client before entry into the panel process.
As well as case appraisal and evaluation processes that may require an evaluator to furnish a non-binding or binding opinion to the parties in a dispute, there is clearly also a tendency, particularly in Australian commercial courts, to refer all or part of a dispute out to a referee. The referee may determine the dispute or issues in dispute in such manner as is appropriate, but having regard to the rules of natural justice.
Other models focus upon obtaining expert evidence by modifying traditional adversarial approaches. For example, the examination of evidence may be conducted more in the manner of a panel discussion between counsel, experts and the panel members.
Expert panel members can also be used. The benefits of these experts include that:
- the expert is not being paid by any one party and therefore is more likely to be impartial
- if the expert reports to Endispute early in the process, this may result in an early resolution of the dispute
- expert witnesses will not be placed in an adversarial role and the panel members will not be forced to choose between two opposing experts
- time and money will be saved by the reduction in the number of experts, the reduction in time spent giving expert evidence and the fact that Endispute and the parties have some control over experts’ fees.
Another option is for Endispute and the parties to use expert advisers, as distinct from appointed expert witnesses, for consultation with the Panel Member on general questions within his or her field. An adviser might also sit through some but not necessarily all of a process conducted by a Panel Member. The expert advice can also be reduced to writing and provided to the parties, who could have a right to comment on the advice and to apply to discuss further evidence.
Arbitration is the longest standing form of Alternative Dispute Resolution (ADR) and the one that most closely mirrors litigation. While litigation procedure is becoming more flexible in the way in which procedure can be matched to different sorts of cases, one of the advantages of arbitration is that the parties have greater freedom to mould the procedure to suit their dispute and needs. In some circumstances, an arbitrator can adopt inquisitorial processes, arbitrate without pleadings or on documents alone without a hearing. Endispute can also assist a client when arbitral dispute resolution processes are considered.