Australian Construction Law Newsletter

in methods of dispute resolution for students studying law andother disciplines. Undergraduate courses are now available anditis most interesting thatADR has been integrated into most lawcourses offered by Bond University.

A thirdobjective, after consultationwithexistingbodies andpractitioners in the field, will be to provide training facilities forthose involved in negotiation, mediation and conciliation.

The planning workshop attended by interested organisa­tions, Departments and private firms demonstrated active sup­port for the Centre as aneutral ground for practitioners in the areato share information and expertise and to encourage empiricalresearchin the area. Therewas a general consensus that there hasbeen a lack of empirical research in the dispute resolutionmovement in Australia and that there is a need for practicalempirical research on the methods employed by dispute resolu­tion practitioners. It is expected that the Centre will disseminatethe findings of research which it carries out, organises or spon­sors.

Ithas been suggested that the Centre might provide hearingrooms on campus for holding arbitrations and mediations andthat it might provide a dispute resolution library resource forpractitioners.

·JT

12. NSW LAW REFORM COMMISSION ADR ISSUESPAPER

The NewSouth Wales Law Reform Commission shall shortlyrelease an issues paper on alternative dispute resolution.

This issues paperwill inquire into and commentupon issuessuch as the training and accreditation ofmediators. As discussedin an earlier Issue of the Newsletter, it is expected that the issuespaper will consider a proposal to protect the mediation process.

The Law Reform Commission's ADR issues paper shall becommented upon in appropriate detail in a future issue, when ithas been released.

• Reprinted with permission from the Law SocietyJournal

13. CONTRACT CLAUSE TO ESTABLISH DISPUTERESOLUTION PROCESS

The following dispute resolution clause has been drafted bythe Law Society's Dispute Resolution Committee and ap­proved by the Law Society's Council. It establishes a mecna­nism by which parties to a contract in dispute may employalternative dispute resolution processes such as mediation,conclllatlon, Independent expert determination or a minl­trial In an attempt to resolve the dispute without litigation orarbitration.

The Law Society offers this clause to its members in theexpectation that they will find it useful in drafting a wide varietyof agreements, including commercial agreements, leases, andagreements for sale of business.

Aspects of the clause worth noting are:

1. The clause is designed as a model only and mem­bers should feel free to vary its terms to suit particu­lar circumstances; e.g. the time limits in para-

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graphs 3, 4 and 6 ofthe clause can be lengthened orshortened to suit the needs of parties to particularagreements.

2. The clause does notforceparties to engage in ADRtechniques; instead, it requires them to designatepersons with authority to settle the dispute, fordiscussions between those persons; and (if thedispute is not resolved by such discussions) forgood faith negotiation directed towards agreementon a procedure for resolving the dispute withoutlitigation or arbitration.

3. The dispute resolution procedure established bythe clause thus is only compulsory in the sense thatunless aparty complies with at least the initial stepsof the procedure, that party may not commencecourtproceedings or arbitration. Urgent interlocu­tory relief may nonetheless be sought at any time.

4. There are many agreements which contain theirown inbuilt time limits. Itmay be that if the disputeresolution clause is used for those contracts it willbe necessary to provide for the suspension ofthesetime limits while the dispute resolution process isemployed.

Dispute resolution1.1 Unless a party to this agreement has complied

with paragraphs 1-4 ofthis clause, thatparty maynot commence court proceedings or arbitrationrelating to any dispute arising from this agree­ment except where that party seeks urgent inter­locutory relief in which case that party need notcomply with this clause before seeking suchrelief. Where a party to this agreement fails tocomply with paragraphs 1-4 of this clause, anyother party to the agreement in di~pute with theparty so failing to comply need not comply withthis clausebefore referring the dispute to arbitra­tion or commencing court proceedings relatingto that dispute.

1.2 Any party to this agreement claiming that adispute has arisen under this agreement betweenany of the parties to this agreement shall givewritten notice to the other party or parties indispute designating as its representative in nego­tiations relating to the dispute a person withauthority to settle the dispute and each otherparty given written notice shall promptly givenotice in writing to the other parties in disputedesignating as its representative in negotiationsrelating to the dispute a person with similarauthority.

1.3 The designated persons shall, within ten days ofthe last designation required by paragraph 2 ofthis clause, following whatever investigationseach deems appropriate, seek to resolve the dis­pute.

1.4 If the dispute is not resolved within the followingten days (or within such further period as therepresentatives may agree in appropriate) the

Australian Construction Law Newsletter 8

1.5

1.6

parties in dispute shall within a further ten days(or within such further period as the representa­tives may agree is appropriate) seek to agree ona process for resolving the whole or part of thedispute through means other than litigation orarbitration, such as further negotiations, media­tion, conciliation, independent expert determi­nation or mini-trial and on:(a) The procedure and timetable for any ex­

change of documents and other informa­tion relating to the dispute;

(b) Procedural rules and a timetable for theconduct of the selected mode of proceed­ing;

(c) A procedure for selection and compensa­tion of any neutral person who may beemployed by the parties in dispute; and

(d) Whether the parties should seek the assis-tance of a dispute resolution organisation.

The parties acknowledge that the purpose ofanyexchange of information or documents or themakingofany offerofsettlementpursuant to thisclause is to attempt to settle the dispute betweenthe parties. No party may use any information ordocuments obtained through the dispute resolu­tion process established by this clause for anypurpose other than in an attempt to settle adispute between that party and other parties tothis agreement.After the expirationof the time established by oragreed underparagraph4 ofthis clause for agree­ment on a dispute resolution process, any partywhich has complied with the provisions ofpara­graphs 1-4 of this clause may in writing termi­nate the dispute resolution process provided forin those paragraphs and may then refer the dis­pute to arbitration or commence court proceed­ings relating to the dispute.

fmding - are key weapons in the lawyer's armoury.The founders of LEADR believe that lawyers are particu­

larly well-equipped to provide ADR services and that the effec­tive use of these methods will stop the driftofclients away fromtheir lawyers.

The aimofLEADR is to foster the use ofADR techniques inappropriate situations and to ensure its members are competent,

skilled and trained in them.The intentions ofLEADR is to:

promote lawyers as the professionals best equippedto provide ADR serviceshelp lawyers improve their negotiating skills and

learn ADR techniquespromote the acceptance of ADR as the dispute reso­lution procedure in appropriate casesestablish a system of accreditationconsultand co-operatewith the courts and withotherassociations and bodies having similar objectives.

The promoted benefits to lawyers of joining LEADR in­

clude:gaining new clients through the group's promotionof ADR to business and governmentopportunities to participate in training programmesimproving the public image of lawyersopportunities for developing this legal specialisationbeing kept informed ofcurrent developments inADR by regular newsletters.

LEADR is a company limited by guarantee incorporated inthe ACT. Membership is open to barristers and solicitors at$125per annum. Those interested should contact:

Val Basham-MercerThe Law Council ofAustraliaPO Box 1989CANBERRA ACT 2601-JT

Reprinted with permission from the Law SocietyJournal.

14. LAWYERS ENGAGED IN ALTERNATIVEDISPUTE RESOLUTION

An organisation entitled LEADR • Lawyers Engaged InAlternative Dispute Resolution has been formed.

According to LEADR's promotional brochure, LEADRwas born out of discussions between partners in a number of

major Australian commercial law firms who shared abeliefin theneed for lawyers to be at the forefront of applying alternativedispute resolution techniques in relevant business matters.

LEADR's aim is to promote lawyers as the professionals bestequipped to fmd speedy, cost-effective ways of resolving dis­putes without litigation.

According to LEADR, the increasing use of AlternativeDispute Resolution methods - negotiation, conciliation, media­tion, mini-trial, independent expert appraisal and neutral fact-

15. ACDC APPOINTS AN INSURANCE MANAGERThe Australian Commercial Disputes Centre has appointedMr Peter J. Hopkins BA, LLB, A.A.I.I. as its InsuranceProgramme Manager. Mr Hopkins' primary responsibllltywill be to deveiop and manage an alternative dispute resolu­tion programme specifically for the insurance industry.

Mr Hopkins is an Associate of the Australian InsuranceInstitute and previously held the position ofCorporate Solicitor

and Claims Broking Manager at Bain Clarkson Pacific Ltd,

International Insurance Brokers.This new position may well have relevance to ACDC's

capacity to deal with complex multi-party construction disputeswhich involve insurers, such as disputes concc;rning defects,

which often involve a multiplicity of parties, including designprofessionals, project management professionals, contractors,specialist subcontractors and manufacturers. Claims in relationto injuries also frequently involve a multiplicity of parties. Insuch disputes, the involvement of the insurers in the disputeresolution process is often essential to settlement.