Mark Brennan Director of Liquor Licensing The Return on Investment in Professional Dispute Resolution Thursday 2 June 2011

Chief Justice Brennan, High Court ‘But the question (of the meaning of “false”) is not to be answered simply as a matter of etymology. The juxtaposition of "false or wilfully misleading" and the absence of any qualifying adjective for the former is a strong argument for the proposition that false means no more than erroneous in fact’ Outcome of litigation: one winner, one loser plus all lawyers winners

Whacka Brennan case ‘If you have a dispute, the first thing you do is hit ‘em, then you start asking questions’ (Whacka Brennan, a carpenter from Bendigo, Victoria) Outcome of Whacka’s approach: two losers

Alternative Dispute Resolution An umbrella term for processes, other than judicial determination, in which an impartial person assists disputants to resolve issues between them  Mediation  Conciliation  Arbitration  Facilitation Outcome of alternative dispute resolution: two winners

Alternative Dispute Resolution MEDIATION A process in which the parties, with the assistance of a dispute resolution practitioner (the mediator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The mediator has no advisory or determinative role in regard to the content of the dispute or the outcome of its resolution, but may advise on or determine the process of mediation whereby resolution is attempted.

Alternative Dispute Resolution CONCILIATION A process in which the parties, with the assistance of a dispute resolution practitioner (the conciliator), identify the issues in dispute, develop options, consider alternatives and endeavour to reach agreement. The conciliator may have an advisory role on the content of the dispute or the outcome of its resolution, but not a determinative role. The conciliator may advise on or determine the process of conciliation whereby resolution is attempted, and may make suggestions for terms of settlement, give expert advice on likely settlement terms, and may actively encourage the participants to reach agreement.

Alternative Dispute Resolution ARBITRATION A process in which the parties to dispute present arguments and evidence to a dispute resolution practitioner (the arbitrator) who makes a determination.

Alternative Dispute Resolution FACILITATION A process in which the parties (usually a group), with the assistance of a dispute resolution practitioner (the facilitator), identify problems to be solved, tasks to be accomplished or disputed issues to be resolved. Facilitation may then conclude, or it may continue to assist the parties to develop options, consider alternatives and endeavour to reach an agreement. The facilitator has no advisory or determinative role on the content of the matters discussed nor the outcome of the process, but may advise on or determine the process of facilitation.

War stories Builder’s Insurance case  62 year-old builder against blue chip insurance company Liquor Licensing case  General store against regional secondary school

Is it worth it? As Small Business Commissioner: -Over 7,000 disputes worth in excess $300m -Resolved on average within 8-10 weeks at a cost of $190 per party

Disputes completed through mediation Total completed disputes, to Source: Victorian Small Business Commission

Is it worth it? As Director of Liquor Licensing: -Inherited 85 contested matters filed at VCAT and resolved 81 of them by quasi-mediation -Parties can get on with business free from the emotional stress and expense of protracted litigation -Courts and tribunals are freed up to hear other matters

ADR success factors -The legislative or constituting framework: independent of court or tribunal supervision -Administrative processes: cooperative and consultative -Credibility of the office -Quality of mediators -Selecting the right mediator -Get the right decision-makers to attend

ADR success factors cont. -Commercially realistic outcome -Low cost -Speedy -Facilitated meetings -Confidentiality -Improve business conduct

Avoiding disputes The seven characteristics of successful business relationships 1.Alignment 2.Commitment 3.Mutual interests 4.Communication 5.Accountability and responsibility 6.Professional conduct 7.Pre-agreed dispute resolution Source: ‘Forming and Maintaining Winning Business Relationships’, Office of the Small Business Commissioner, 2007

Etymology: 1.the study of historical linguistic change, especially as applied to individual words. 2.an account of the history of a particular word. 3.the derivation of a word. Source: Macquarie Concise Dictionary (3 rd Edition).

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