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What is expert determination?

admin — Sat, 05 Nov 2011 06:50:14 +0000

Expert determination is an alternative and flexible procedure for the determination of disputes under the guide of an independent third party who is also an expert. The Expert decides the outcome of the dispute.

This process requires that the disputing parties agree beforehand to be bound by the judgment of the independent expert.
In this case the Expert is not an arbitrator of the matters in dispute and is deemed not to be acting in an arbitral capacity and the process is not an arbitration within the meaning of any statute. However, the Expert is still independent of, and is required to act fairly and impartially, giving each party a reasonable opportunity of putting its case and dealing with that of any opposing party. Like adjudication and arbitration, the parties can choose whom to appoint as an expert.

Expert determination is most suited for disputes which are relatively simple and are essentially technical in nature. It is primarily used to resolve technical issues, such as defective or incomplete work, variations or extension of time claims. It is also more often than not where the facts of the dispute are agreed and the dispute is a genuine difference of opinion on a technical matter as opposed to one party acting to frustrate the other and delay payment. As a guide, if a court would rely on expert evidence to resolve the dispute, expert determination will possibly be a viable and cheaper alternative.

During the process, the expert usually meets with the disputed parties either together, or separately if there are no objections. The process is relatively quick, informal, confidential and inexpensive when compared to other formal processes and unlike the court process, there are no formal hearings. There is no requirement to have legal representation or even for each party to witness the other party’s evidence or statements. The parties may even decide not to submit any evidence at all and leave the expert to investigate and ascertain the facts and law from documents and/or visual observations, thus keeping costs to a minimum.

It is important to understand that the person carrying out the expert determination is not acting as a negotiator, mediator, adjudicator or arbitrator.

The decision is a finally binding determination and can only be appealed on the very limited grounds of jurisdiction, fraud, collusion or bias. Expert determinations are enforceable through the courts in Australia but may not be in other jurisdictions. Therefore, in international disputes, the use of expert determination may not be an appropriate process depending on where the likely place of enforcement is situated.
The whole process of expert determination is confidential and that means that if a satisfactory resolution is found, then existing business relationships can be easily maintained.

The advantages of arbitration

admin — Wed, 05 Oct 2011 07:06:51 +0000

The process is binding and can offer an effective means of settling a dispute.
The determination of the dispute will be by an independent person, usually with expertise relevant to the dispute. The Arbitrator is impartial and is required to act fairly and observe the principles of natural justice.
Arbitration is a consensual process and the nomination of an arbitrator must be agreed by both parties.
Each party is given a reasonable opportunity to put forward their case.
The process can be adapted to the circumstances of the dispute.
Depending upon the nature and complexity of the dispute:

the process of arbitration can be time efficient and less costly than a more traditional method of dispute resolution such as litigation;
arbitrations can be determined with a formal Hearing, or on the basis of documents alone;
legal representation may or may not be required or sought by the parties.

The process is private and confidential.

The Advantages of Expert Determination

admin — Mon, 05 Sep 2011 07:58:24 +0000

The process is binding and can offer an effective means of settling a technical issue or dispute.
The determination of the dispute will be by an independent person with expertise relevant to the dispute. The Expert is impartial and is required to act fairly and give each party a reasonable opportunity to be heard.
The process is very flexible and adapted to the circumstances of the dispute.
The process is very fast and is often the quickest and most inexpensive way of resolving disputes, particularly where the facts are agreed.
The process is private and confidential, thus helping both parties maintain business relationships.
Expert determination is most suitable for technical or valuation issues, as an appropriate specialist can be appointed to determine the technical issues.
It is usually cheaper, quicker and less formal than arbitration or litigation.
The expert’s decision can only be challenged on grounds of fraud or partiality and is thus normally final and binding.

What is Arbitration?

admin — Fri, 05 Aug 2011 08:02:32 +0000

Commercial Arbitration is a formal dispute resolution process in which two or more parties refer their dispute to an independent arbitrator for determination and resolution. The result of the arbitration is known as the Award and is enforceable in the same manner as a Court judgment. Its procedures may be varied by the parties to suit the size and complexity of their dispute, provided that the arbitration is conducted according to the principles of natural justice.

In complex cases, the arbitration process may include a judicial style of hearing whereby formal claims and defences are lodged, evidence is put forward by each party and tested by cross-examination etc. Whereas smaller cases may benefit from hearings based on documentary submissions alone, which can reduce the costs significantly.

In Australia, commercial arbitration under the guide of a qualified arbitrator, has become the preferred procedure for parties seeking a binding determination of their dispute and is an efficient, private and speedy alternative to Court based litigation.

Arbitration is usually considered the preferred process for dispute resolution when parties require defined procedures that are similar to those available in court but without the delays, public access or formality. The process involves determination by an arbitrator familiar with the professional or technical background of the matters in dispute.

The disputed parties usually select an arbitrator with particular expertise and commercial experience in the subject matter of the dispute. This ‘expert nominee’ will then typically call a preliminary conference with the parties to agree procedural guidelines for the arbitration. This means the case is heard in a customised format often resulting in a more efficient, effective and appropriate outcome.

Often, an arbitration clause is included in the terms of the commercial contract. Alternatively, an agreement to resolve the dispute via arbitration can be made by the parties after a dispute has arisen. Arbitration can be a useful way to resolve a dispute because the process is generally efficient with a quick outcome. The process is also private and confidential, with the outcome being final and enforceable in accordance with the law and each party’s rights.

What is conciliation?

admin — Tue, 05 Jul 2011 07:59:43 +0000

Conciliation is a process in which a neutral third party (the conciliator) assists the disputed parties to identify the disputed issues, develop options, and consider alternatives with the aim to reach a mutually acceptable 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 an agreement.

The Process of Arbitration

admin — Sun, 05 Jun 2011 07:56:39 +0000

The procedure of arbitration is generally dictated by the terms of the contract, incorporating the arbitrator’s terms of reference including their powers and duties. Additional terms may be negotiated such as a waiver of any liability from the parties, and that the arbitrator is required to make the decision on the basis of all the material submitted.

The process normally begins by identifying all the matters in dispute. This helps to avoid the disputed parties from introducing new issues once the arbitration is in progress.

Other terms of reference need to be agreed upon such as the scope of the arbitrator’s function. For example, it may need to be agreed upon whether the arbitrator’s role will extend to deciding issues of a technical nature or whether the arbitrator can appoint a legal adviser to assist with legal issues, if the arbitrator is not legally qualified. Other procedural definitions can involve the nature of any submissions to be made such as:

- guidance on the length and content and the extent of submissions as well as the timetable for the delivery of such submissions and the timing and duration of any oral hearing;

- whether or not there should be an oral hearing and, if so, whether or not oral testimony will be permitted at such a hearing;

- whether any expert evidence will be submitted and whether same is to be way of written submissions and/or oral evidence;

- the means by which the arbitrator will deliver the decision (the Award) and whether or not it will be accompanied by reasons.

- The disputed parties are normally required to pay for the costs of the arbitrator and to bear their own costs.

What is mediation?

admin — Thu, 05 May 2011 07:52:33 +0000

Mediation is an alternative and informal way of resolving commercial disputes without the need to go to court. It is a confidential process which involves an independent and neutral third party – a mediator – who helps the disputants to negotiate and reach a decision about their dispute that both parties are willing to accept.

The mediation process includes identifying pertinent issues, clarifying any misunderstandings, exploring solutions, and finally negotiating an agreement.

Unlike arbitration, the mediator cannot impose a decision upon the parties. Instead, the mediator is able to assist the parties explore the issues in depth and reach the best possible joint decisions that the circumstances allow. Mediation is particularly useful in complex matters involving parties in ongoing contact where less formal communication may be helpful. Unlike a judge or an arbitrator whose decisions subject one party to win and the other party to lose, mediation is about finding a solution that works for both parties.
Mediation is a voluntary process and will only take place if both parties agree. It is a confidential process where the terms of discussion are not disclosed to any party outside the mediation hearing.

It is important to note that mediators do not take sides, make judgments or give guidance. They are simply responsible for developing effective communications and building consensus between the parties. The mediator helps those involved in the dispute talk to each other, thereby allowing them to resolve the dispute themselves. The focus of the mediation process is to reach a common sense settlement agreeable to both parties. The mediator does not act in a capacity as a judge and does not render a decision or impose a solution on any party.
During the mediation session, all parties present a summary of their points of view. Lawyers may or may not be present. Typically, the mediator will then meet privately (caucus) with each party to explore more fully the facts and issues of each side. The caucus offers participants the opportunity to vent anger or frustrations outside the presence of the opposing side. The mediation process continues as the mediator meets alternatively with each party, carrying settlement proposals back and forth until an agreement is reached. The agreement is then reduced to writing, and signed by the parties.

If the parties are unable to reach an agreement, they can still go to court. The details about the mediation process and what was discussed during the meetings remain confidential and will not be disclosed or used at a court hearing.
Expenses of the mediation are shared equally by the parties unless they agree otherwise and the costs will depend on the value and complexity of the claim. Mediation should be considered as early as possible after a dispute has arisen, as it is more efficient and cost-effective than arbitration or litigation. It is particularly advantageous where a dispute involves complex issues and/or multiple parties.
Also mediation can be implemented prior to, or in conjunction with, other forms of dispute resolution such as arbitration or court proceedings. While the parties must agree to participate in a mediation, that can be achieved by way of separate agreement or by a dispute resolution clause existing within a contract between the parties. Where privacy and confidentiality are important, mediation enables parties to preserve these rights without public disclosure. This often leads to more satisfactory outcomes for both parties.

Advantages of mediation

admin — Tue, 05 Apr 2011 07:52:07 +0000

What are the advantages to Mediation over having your dispute resolved in the court system?

Mediation is often more affordable than taking the matter to court as mediation costs considerably less than litigation.
The mediation process often settles a dispute within a few sessions. Most mediations conclude or settle within thirty days from initiating the process and is therefore more efficient than a potential lengthy court process which can take years in some cases.
Mediation statistically settles over 85% of initiated disputes and is therefore more effective.
The process of Mediation is much more flexible and informal than a court hearing and it is not necessary to have legal representation with you during the mediation process. However it is still possible to have your solicitor present if it makes you feel more comfortable. The mediation process allows participants to obtain legal and other mutually acceptable experts but expert advice is never determinative. That is, the participants always retain decision-making power.
Disputing parties are normally directly engaged in the negotiation process of their settlement. The parties involved also enhance the likelihood of continuing their relationships by utilising mediation.
Information disclosed during mediation is completely confidential. Mediation discussions and all materials developed for a mediation are generally not admissible in any subsequent court or other contested proceeding and may not be divulged as evidence in any trial or judicial proceeding, except for a finalised and signed mediated agreement.
Mediation is voluntary and any party can leave at any time for any reason, or no reason.
The mediation process is collaborative and no participant in mediation can impose anything on anyone. Thus everyone is motivated to work together to solve the issues and reach a mutually beneficial agreement. Each party has complete decision-making power. Nothing can be imposed on you. The mediator’s role is to ensure that parties reach agreements in a voluntarily and informed manner, and not as a result of coercion or intimidation.
Unlike a judge or an arbitrator whose decisions subject one party to win and the other party to lose, mediation is about finding a solution that works for both parties. The process of mediation is more satisfying because all parties have actively participated in voluntarily resolving issues. Participant satisfaction and the likelihood of compliance are found to be elevated through mediation compared to court options.