Alternative Dispute Resolution Committee

Angela Bowne SC (Chair)
Malcolm Holmes QC
Peter Callaghan SC
Campbell Bridge SC
Robert Angyal SC
Ian Davidson SC
Nicholas Kidd SC
Mary Walker
Rashda Rana
Julie Soars
Deborah Robinson
Andrew Fox
Dr Sean Bogan

Bar Association Staff Member
Jo Wilton

Committee objectives

Barristers’ work is not confined to appearing as an advocate in court for a client.  Barrister’s work, defined in clause 74 of the New South Wales Barristers’ Rules, includes negotiating on behalf of clients to compromise cases, representing clients in mediations and acting as referees, arbitrators or mediators.  Barristers are also required to ‘inform the client or the instructing solicitor about the alternatives to fully contested adjudication of the case which are reasonably available to the client…’ (Clause 17A of the NSW Barristers’ Rules).

The committee’s objectives are to monitor, promote and educate barristers and others on various forms of alternative dispute resolution.  Specifically the committee:

* provides the Bar Council with submissions related to all forms of alternative dispute resolution;
* educates barristers on the various forms of dispute resolution through continuing professional development seminars;
* prepares and provides material on ADR to readers’ courses;
* liaises where appropriate with the Law Society’s Alternative Dispute Resolution Committee;
* liaises where appropriate with the Law Council of Australia’s Alternative Dispute Resolution Committee;
* maintains lists of barrister arbitrators and mediators who have been appointed to the various courts and Association lists;
* monitors and reviews court-annexed mediation, including statutory provisions and court rules relating to mediation; and
* promotes barristers as representatives at mediation and as mediators.

In achieving its objectives, the Committee mainly focuses on the following forms of alternative dispute resolution in which barristers may act as independent and neutral persons or represent parties engaged in them:
* Mediation
* Arbitration
* Early neutral evaluation
* Expert determination
* Adjudication
* Conciliation
* Various forms of negotiation

A mediator assists the parties to identify issues involved in the dispute and helps the parties to develop options for resolution to consider alternative ways to reach a negotiated agreement.  Many contracts now have mediation clauses which the parties are required to comply with before commencing court proceedings. The mediator affords all parties an opportunity to put forward their point of view and voice issues concerning them. The mediation takes place in private and the session is confidential.

An arbitrator provides a determinative ruling in the form of an award.  The process and determination may be confidential if the parties wish. The arbitrator decides all or some of the issues in the dispute. Arbitration resembles a court process.  For example, witnesses may be summoned to provide sworn testimony and other evidence may be taken. It is however usually less formal than the normal court process.The arbitrator may be appointed by the court or by agreement between the parties to the dispute. Arbitration takes place within an agreed time-scale, which ensures that the matter is resolved as quickly as possible.

Early Neutral Evaluation
This method is used very early in the resolution process. The evaluator considers the circumstances of the dispute and allows each of the parties an opportunity to present their case. The evaluator identifies the strengths and weaknesses of the parties’ positions and highlights the areas of agreement in the dispute. The evaluator then issues an assessment of the merits of the case, which the parties may agree will be binding or non-binding.

Expert Determination
This process can occur at any time in a dispute and often occurs before or instead of litigation. It is a useful procedure saving court costs and shortening the length of hearings or trials.   It is often provided for in contracts.  Expert determiners may be chosen because  of legal expertise and will use their legal knowledge to resolve the issues involved in the dispute.    Expert determiners may decide all issues between the parties, or a specific issue chosen by the parties. The decision may be binding or non-binding.

This process is very similar to court proceedings but occurs outside the court.  The adjudicator reviews evidence and submissions put forward by opposing parties or litigants and makes a determination as to the rights and obligations between the parties. This is most commonly used in the building and construction industry and some state governments have legislated to enable disputes over payment to be dealt with by adjudication.   The adjudicator’s decision will generally be binding.

A conciliator can assist parties to a dispute in several ways, including identifying the issues in dispute, developing options, considering alternatives and working to reach an agreement. The conciliator may advise on or decide the process of conciliation, recommendations for terms of settlement, give expert advice on likely settlement terms, and actively encourage the participants to reach an agreement.  The conciliator, while at times advising on the content of the dispute, does not make any determination.

Negotiation and Alternative Dispute Resolution
Various forms of negotiation are used in alternative dispute resolution and an experienced neutral third person can be used to facilitate negotiations.  In such circumstances, the person facilitating the negotiation does not usually advise on or determine  issues being negotiate or the outcome of the process, but may advise on or determine the process of the negotiation.