Prior to the formal notification of a dispute being given, the Resolution Advisor is available to consult and advise in relation to relevant matters with the parties, which may assist in narrowing the scope and in turn render it capable of submission as a dispute.
Upon receiving and evaluating the formal notification of a dispute, the Resolution Advisor will advise parties of the available methods for resolution, and if asked to do so will advise on what may be the most desirable method to adopt. It is always for the parties to make the ultimate decision but the Resolution Advisor is available to provide its expertise in the field of dispute resolution to support any decisions made.
Once a decision is made the Resolution Advisor will arrange hand over of the dispute to the approved Pool Members. The advisor will continue to be available to the parties to assist in the preparation, conduct and general progress of the process of resolution. The assistance will be provided generally along the lines which will appear in Practice Notes published by the Resolution Advisor.
DISPUTE RESOLUTION PROCESSES
There are many ways to resolve a dispute, some of these processes include:
Panel Arbitration is a process by which a committee made up of individuals hear and determine the outcome of an arbitration hearing. The arbitration process can vary according to the type of dispute Arbitrations are governed by the NSW Commercial Arbitration Act 2010 and this act provides that Arbitrators can extensively case manage the process of arbitration, may determine a matter without examination or cross examination of any witnesses and can limit the manner in which a dispute is presented. In most cases arbitrators will hold a case management conference and will discuss settlement options and the approach to the arbitration before the panel begins to deal with the matter. See Arbitration Process for more information.
An Expert Determination is a process by which an independent and impartial expert third party is appointed to assess the merits of a Dispute and make findings on factual issues relevant thereto.
The Expert determines the process by which the Determination is conducted. In determining the process, he or she may, inter alia, request a joint statement identifying and clarifying the issues in dispute and request the provision of documents relied upon by the parties.
After receiving the necessary material, the Expert will at first instance provide a draft decision regarding the dispute and provide each party a minimum period of 5 days to comment on his/her decision. The Expert thereafter has 40 days within which to provide his/her final decision.
The Expert’s decision is final and binding.
If either party is of the view that the final decision of the expert ‘contains a manifest error’ or that the expert has ‘acted in bad faith’ they may commence legal proceedings. Either party has a period of 20 business days to notify the Resolution Advisor of its intention to commence legal proceedings in respect of the decision made.
Both parties must, within 10 business days of agreeing to have a dispute referred to an expert, agree on the person to be appointed. If the parties are unable to agree, the Resolution Advisor must be notified and we will, within 5 business days the Resolution Advisor will nominate 3 appropriate experts for the parties to choose from.
An Expert cannot make a determination on Industry Relevant Disputes.
Mediation is a process in which ‘parties to a dispute, with the assistance of a neutral third party (‘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.’
If the parties agree to mediate, they must endeavour to resolve the matter within 30 Business Days of the mediator’s appointment or alternatively, within a period as agreed to by the parties.
The mediator assists the parties in identifying the issues in dispute and negotiating between themselves, while maintaining his/her independence and impartiality.
Information disclosed during mediation is confidential.
If the Dispute is resolved at mediation, Terms outlining the Agreement are drafted and signed by the parties. The matter is then concluded.
If the Dispute cannot be resolved at mediation, then either party may elect to have an Expert Determination or a Panel Arbitration.
Availability of Resolution Advisor
In order to fulfil the functions of the Resolution Advisor, it may be useful for you to notify the Resolution Advisor prior to the formal notification of a dispute. We may be able to support the Dispute Notification process in a way that narrows the scope of the Dispute. If a Dispute does arise, then we can help you through the process as set out in the agreements. It is not intended that Endispute Pty Ltd or Prof. Tania Sourdin provide services outside of the scope of their appointment as Resolution Advisor(s).