Cost Effective Dispute Resolution Alana Dowley Legal Services Director Contract Intelligence Pty Ltd

WHY ADR? Cheaper and quicker Flexible in process and outcome Considers commercial imperatives Maintains relationships Is private and confidential Must be preferred over trial (even after litigation has commenced)

Dispute Resolution Clauses Notice of Dispute Compulsory conference within 14 days Automatic referral to Arbitration – IAMA appointment unless agreed – IAMA Rules unless agreed

Commercial Arbitrators FieldProfessionNumber Construction – Civil Engineering & MiningSolicitor11 Engineer – Civil and Mining12 Construction – Design/ArchitectureSolicitor5 Architect7 Construction – Major Commercial / IndustrialSolicitor6 Architect9 Builder5

Legal v Technical Legal arbitrator – Tends towards formal process – Requires adversarial expert evidence – Provides expertise available through the Courts Technical arbitrator – Grounds for appeal Misconduct of the proceedings Error of law on the face of the record

Commercial Arbitration Rules Institute of Arbitrators & Mediators Australia Schedule 1: General Arbitration Procedure Schedule 2: Fast-track Arbitration Procedure – 20 days each (consecutive) to provide: Case statement Evidence (including expert reports) Submissions – On the papers if possible Otherwise, hearing within 120 days of reference

Industry Trend in Disputes Clauses Mediation followed by litigation – Challenges for mediation: Issues not yet defined Lack of access to documents and information Parties emotionally charged No costs incurred yet Litigation (with pre-trial mediation) – Challenges: Early in the process? – Issues as above Later in the process? – Too much invested already

Civil Dispute Resolution Act (Cth) Federal Court applications – incl bankruptcy and consumer protection Applicants: genuine steps statement – efforts made to resolve dispute Respondents: genuine steps statement – whether respondent agrees with statement Consequences – Referral to dispute resolution – Dismissal, strike-out, or limitation to pleading – Adverse cost orders

Supreme Court Mediation Rules No listing for trial without mediation Mediators: Registrars, Judge, private mediator Court encourages early mediation Solicitors are to inform clients on mediation Costs: usually in the cause, however, adverse costs orders possible for lack of cooperation Mediation in expert conclave can be ordered

District Court Mediation Rules Pre-trial conference at Entry for Trial stage Registrar attempts to resolve dispute, narrow issues, direct further interlocutory steps Process designed for personal injuries matters (insurance respondent) Pre-trial may be adjourned to mediation (particularly for complex matters) Early mediation vaguely encouraged

Magistrates Court Mediations Pre-trial conference before any formal steps Registrar explores potential for settlement Directions to progress matter if required Pre-trial either adjourned or listing conference

State Administrative Tribunal Initial directions hearing: – explore settlement – directions to progress matter if required Mediation will be ordered if appropriate Trial dates are set notwithstanding mediation

Construction Contracts - Adjudication Payment claim made under Contract Dispute arises on rejection / non-payment Application within 28 days Response within 14 days Adjudicator appointed by registered body Possible further steps: – View, expert, further submissions, extension Determination within 14 days Binding and enforceable but interim (not final)

Applications for Adjudication Year Number of Adjudications Total $A Value of Payment ClaimsMean value of Payment Claims $10,485,828.12$361, $15,938,123.77$442, $98,222,008.65$1,142, $35,838,998.23$341, $233,266,050.32$1,356, $308,553,664.77$1,566, From the Report of the Building Commissioner for the year ending 30 June 2011

Adjudicator’s fees Range of ClaimsTotal feesHighestLowestMean average $1 - $9,999$35,932.50$7,500.00$220.00$1, $10,000 - $24,999$34,912.35$8,000.00$800.00$3, $25,000 - $99,999$141,849.90$10,000.00$462.00$3, $100,000 - $249,999$108,508.55$13,318.61$120.00$3, $250,000 - $499,999$90,447.96$18,304.00$432.00$4, $500,000 and over$298,584.98$28,023.05$1,000.00$7, From the Report of the Building Commissioner for the year ending 30 June 2011

Fast-Track Arbitration v Adjudication Process remains flexible – Can be extended – Can incorporate mediation Arbitrator – Chosen or appointed – Co-arbitration or referral to expert possible Result – Binding and Final – Limited right of appeal

Expert Costs in Arbitration Eg: Approximate pre-hearing costs – Arbitrator$5,000 – Solicitor$40,000 – Counsel$15,000 – Expert witness$160,000 TIMES by 2?WHY?

Dispute Resolution Clause Notice of Dispute Compulsory conference within 14 days Construction Contracts Act Adjudication? Automatic referral to Arbitration after 28 days: – Co-arbitrators (one legal, one technical) – Mediate at prelim conference – Thereafter, Fast-Track IAMA Rules – No adversarial expert reports – Civil Dispute Resolution genuine attempt rules apply Litigation reserved for urgent injunctive relief