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ADR Conference

ADR Conference

By Steven Sapountsis


Good morning and welcome to the Alternative Dispute Resolution Conference  organised by the ADR committee of the Law Institute’s litigation section.

My name is Steven Sapountsis and I am the current president of the Law Institute of Victoria.

Let me first acknowledge the Traditional Owners of the land on which we are meeting. I pay my respects to their Elders, past and present, and the Elders from other communities who may be here today.

Because you are present, you are all special, but please let me acknowledge  particularly the presence of :

  • His Honour, Associate Justice John Efthim, our keynote speaker;
  • Past president, and former CEO of the Law Institute Ian Dunn; and past president Tony Burke; and
  • The chair of the Law Institute’s Specialisation Board, Roger Batrouney

And I also need to mention the generous assistance of our ongoing conference series sponsor, Legal Super. 

While we might consider alternative dispute resolution as a fairly new weapon in the armoury of dispute resolution, in the sense of it being an alternative to  the more well known forms of dispute resolution – war and courts, it does have some history.

In his history of alternative dispute resolution, Laurence Boulle (pron. Bull) points out that the practice goes far as back as 1800BC -to the Mari (Marie) Kingdom (in modern Syria), which used mediation and arbitration in disputes with other kingdoms.

 A little later, in 960BC, Israel’s King Solomon famously arbitrated a dispute between two women over a child by suggesting he split the child in half. The parties quickly came to an agreement.

In 300BC, Aristotle said that arbitration was a better way to resolve disputes than through the courts, because it was a better way to achieve equity, which he defined as "fairness and impartiality".

"Equity is justice in that it goes beyond the written law,” Aristotle said. “And it is equitable to prefer arbitration to the law court, for the arbitrator keeps equity in view, whereas the judge looks only to the law, and the reason why arbitrators were appointed was that equity might prevail.”

I think that we all know and accept that an alternative dispute resolution can better enable the parties to fashion a resolution that is more acceptable- perhaps even more equitable- than a court decision.

It is well to remind clients of that when they insist they want their day in court. In court they might get the full impartial pronouncement of the law, but they may not necessarily end up with a result they are particularly happy with. And it is likely to be expensive and time consuming.

We also know that taking a matter to a hearing is expensive and stressful.

I have seen the tremendous growth of alternative dispute resolution, and particularly mediation, in Victoria over the past ten years or so.

I think that Victoria has embraced ADR much more completely than have the other States.

It is probably the case that, in Victoria at least, we could refer to ADR as 
“appropriate” dispute resolution rather than as “alternative” dispute resolution.

Part of that is I think, due to the proactive and encouraging role played by our Courts – and also due to the early availability of good and committed mediators. There is now hardly a case of any significance that will not have been referred to at least one mediation before being set down for hearing.

The profession – solicitors and barristers – has also played its part.

The public sometimes assumes that lawyers prefer to take a matter to trial because that is financially more beneficial to them. But here are just a couple of examples that show how our profession puts the interests of clients first:

In one case, we had a Federal Court matter that had been booked in for a 15 day hearing. Counsel had mentally prepared for the trial and, no doubt, the significant amount of fees it would earn them - and had planned holidays for shortly after the scheduled finish of the trial. But when a mediation was agreed to one week before the trial date, there was not a moment’s hesitation that this was the right thing to do.

In another matter, a large County Court property and commercial contract  dispute, had been booked in for 10 days. A formal mediation had been unsuccessful. It had at least narrowed the issues in dispute between the parties – but we were still several million dollars apart.

One month before trial, a directions hearing was held to argue a point about expert evidence on damages. At the directions hearing, someone suggested we should talk – and talk we did. The matter settled late on that directions day.

In each of those cases, where financially it may have been better for the lawyers to have them go to trial, not once was there a hesitation in seeking an alternative resolution – and the lawyers worked hard to have the matter resolved. And no counsel charged a “disappointment ” fee.  

Today, we will hear about developments in alternative dispute resolution, and reinforce some of the law and practical guidance on how to participate in and make the best of alternative dispute resolution – either as an advocate for a party or as a mediator.

The organisers of the conference have put together an interesting and relevant program, with notable experts to inform and enlighten us.

This will include some discussion of the Civil Procedure Act and its impact in promoting the use of ADR.

Associate Justice John Efthim will share with us his experience in conducting commercial list judge appointed mediations.

We will also hear about the advances in online dispute resolution that may make ADR even more accessible and cost effective in the future.

And we will hear about what is happening in the world of arbitration.

With that, please let me open this conference.

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