Arbitration

What is arbitration?
Arbitration occurs where parties agree to have a third party, the arbitrator, determine a dispute which has
arisen between them.

In Western Australia, arbitration is governed by the Commercial Arbitration Act, 1985. A copy of the Act can
be obtained fromwww.slp.wa.gov.au/statutes/swans.nsf

An arbitrator’s determination is called an “award”. A party to arbitration can apply to the Court to have the
award determination registered as a judgment of the Court.

What are the differences between arbitration and other forms of dispute resolution?
Arbitration differs from litigation in that it is consensual: the parties must agree to resolve their dispute by
arbitration. Unlike mediation or conciliation, an arbitrator decides the dispute. Generally, an arbitrator may
only act on material provided by the parties. A table showing the differences between arbitration and other
dispute resolution processes can be found here. download PDF version or RTF version.

What are the advantages of arbitration?

Arbitration can be quicker, simpler and less formal than litigation.
Arbitration is also more private that court proceedings. Members of the public and representatives of the
media cannot attend arbitration proceedings and listen to the evidence.
Parties can agree that the outcome of the arbitration shall be confidential.

Do I need a lawyer to represent me in arbitration?

Generally, parties to arbitration are assisted by retaining lawyers to represent them.
An arbitrator will not provide legal advice to the parties about their position.

How can I enforce an award?

An award made by an arbitrator can be registered in the Supreme Court and enforced in the same way as a
Supreme Court judgment.

What scope is there for an appeal?

Arbitrators' decisions on questions of fact are final and binding.
It is possible to appeal an arbitrator's decision on a question of law made by an arbitrator, but only with
permission from the Court. The grounds on which permission will be granted are limited.

Who pays for the arbitration?

The parties bear the costs of an arbitration, including the arbitrator's fees. The arbitrator can order an
unsuccessful party to contribute to the successful party's legal costs, as in court proceedings.

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Expert Determination
What is expert determination?
In expert determination, the parties get an independent third party, who is expert in a particular field, to
adjudicate on a dispute within the field of expertise.

What are the differences between expert determination and other forms of dispute resolution?
An expert determination is similar to arbitration in that the expert makes a determination of the issues,
rather than getting the parties to agree on the resolution of the matter, as in mediation. Unlike a court, an
expert making a determination can take into account his knowledge and expertise.
A table of the differences between expert determination and the other dispute resolution processes can be
found here. download versionor version.
When should I consider expert determination?
Expert determination is suitable for determination of 'simple' issues requiring technical expertise or
evaluation, such as the value of a piece of land, or the amount of notice to which an employee is entitled.
Expert determination is sometimes used where the parties want to reduce the chance that the decision will
be appealed or the process contested.

What are the advantages of expert determination?

Expert determination can avoid the need for a formal hearing, which can make it both cheap and efficient.
There are very limited avenues for challenging a decision made by an expert appraiser.

What is the cost?

The cost depends on the nature of the dispute and the approach of the parties and the expert. Because the
procedure can be very informal, and the parties do not generally put evidence to the expert, the process
should be cheaper than determination the same issue in court or by arbitration.

How does the process actually operate?

The procedure for an expert determination is largely a matter for the parties, or, if they make no agreement,
for the expert.
The expert determination process is very flexible. Generally, it involves:
(1) a meeting between the expert and the parties about the conduct of the determination;

(2) the provision of information to the expert by the parties.

(3) a determination by the expert.

How confidential is an expert determination?

The parties may agree that all aspects of the process and the outcome shall be confidential. Scott's standard
expert determination agreement can be accessed here.

Do I need a lawyer?
Generally, parties to an expert determination are assisted by retaining lawyers to represent their interests.
An expert determiner does not provide advice to parties about their legal position.

What is expected of me?

This depends on the particular process chosen for the expert determination. Generally, it will be necessary
for background information to the provided to the expert to assist in the determination. It is not usually
necessary for the parties to give oral evidence.

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Mediation
What is mediation?
Mediation is a process by which an independent third person assists parties in dispute to reach a negotiated
resolution.

What are the differences between mediation and other dispute resolution processes?
A mediator does not determine a dispute between parties. A mediator assists the parties to reach an
agreement resolving the dispute.
A table of the differences between mediation and the other dispute resolution processes can be found here.

What are the advantages of mediation?

Mediation can provide a quick, cheap, confidential means of resolving disputes. It has the best chances of
preserving any ongoing relationship between the disputing parties. Also, because it is a resolution reached
by the parties, the parties are more likely to be satisfied with the result.
Mediation is private and confidential.

What disputes can be mediated?

Most types of dispute can be assisted by mediation, if there is genuine commitment to resolution by the
parties.

Can what I say in a mediation be used against me?

Before private mediation commences, the parties enter into a mediation agreement. The mediation
agreement will contain a clause requiring the parties to keep confidential what is said at the mediation.

Persons who are present at mediations, but are not parties will also be required to sign confidentiality
agreements.

Mediation agreements also provide that statements made during the mediation are “without prejudice”, ie
the statements cannot be used later in court.

Do I need a lawyer to help me?

Parties are best able to negotiate if they know what their rights and obligations are, before and during the
process. A mediator will not advise either of the parties to mediation of their rights or obligations.

When is the best time to mediate?

It is best for mediation to take place as soon as possible, before positions have become entrenched and legal
expenses have been incurred. However, it is never too late to mediate a dispute, even after litigation or
dispute resolution procedures have been commenced.

The Commercial Arbitration Act provides that an arbitrator may also act as a mediator or conciliator in
proceedings in which he or she is acting as arbitrator.

What if I don't trust the people on the other side?

It is not uncommon for parties who are in dispute to not trust each other. However, mediation is designed to
overcome such problems through opening up communications between the parties.
Parties in a mediation are expected to behave with good faith towards each other during the mediation
process. If this does not happen, the mediator can terminate the mediation.

How much does mediation cost?

The cost of mediation depends on the nature of the dispute and the number of parties involved. A dispute
can be resolved through mediation much less expensively than it can be resolved through litigation.

What do I have to do in a mediation?

You will need to attend.
You should do so with a genuine interest in reaching a resolution, although this does not mean that you must
agree to the proposals of the other side.
You should have considered what interests you are trying to advance by the dispute and in any settlement,
and should be in a position to inform all parties how you see the matter.

What happens if we can't reach agreement?

Sometimes mediation does not result in an agreement between the parties. This may mean that the parties
may adopt other dispute resolution strategies, which can include litigation or arbitration.

Often, however, even an “unsuccessful” mediation means that the parties are more familiar with the other’s
views and interests . This may reduce the areas which need to be adjudicated and may facilitate
negotiations at a later stage.
What happens if we reach agreement at mediation?
The agreement will be put in writing and signed by the parties. The agreement can be enforced in the usual
way.

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Conciliation
What is conciliation?
Conciliation is a process by which a third party assists the parties to resolve their dispute by agreement. A
conciliator may do this by expressing an opinion about the merits of the dispute.

How does conciliation differ from other dispute resolution processes?

Conciliation is similar to mediation in that the role of the conciliator is to assist the parties to reach an agreed
resolution. Unlike mediation, a conciliator will express an opinion about the merits of the dispute. Unlike
arbitration and expert determination (and litigation), the conciliator does not decide the disputs for the
parties.
A table of the differences between conciliation and the other dispute resolution processes can be found
here. download version or version.

What are the advantages of conciliation?

Conciliation can provide a quick, cheap, confidential means of resolving disputes.
Conciliation, as opposed to mediation, can be useful where one of the parties has unrealistic expectations
about the dispute and a more pro-active approach to the merits may assist in resolving the matter.
Conciliation may also be useful where the parties wish to have their dispute resolved by objective
considerations of what is appropriate, rather than purely by agreement between the parties.

What disputes can be conciliated?

Conciliation can be used with a broad range of disputes.

When should I conciliate?

It is best to conciliate as soon as possible. If conciliation occurs early, positions have not become entrenched
and expense has not been incurred.

What is the cost?

The cost of conciliation depends on the nature of the dispute and the number of parties involved. It also
depends on any additional work performed by the conciliator eg providing a formal opinion. In general,
however, a dispute resolved through conciliation will have involved less expense than resolution through
litigation.

How does the process actually operate?

The process followed is similar to the process for a mediation, involving discussion between the parties.
A conciliation may focus more on the merits of the parties' positions. The parties may provide information to
the conciliator to enable the conciliator to give an opinion about issues in dispute or the parties positions.
The approach to be taken by the conciliator is something which will be discussed at the initial preliminary
meeting.

How confidential is the conciliation process?

Parties to conciliation proceedings will have signed a formal agreement regulating the process. Included in
the agreement will be provisions requiring the parties to maintain the confidentiality of information disclosed
in the conciliation.

Do I need a lawyer?
Parties are best able to negotiate if they know what their rights and obligations are, before and during the
process.

What is expected of me?

As with mediation:
(1) You will need to attend. You should do so with a genuine interest in reaching a resolution, although this
does not mean that you must agree to the proposals of the other side.

(2) You should have considered what interests you are trying to advance by the dispute and in any
settlement, and should be in a position to inform all parties how you see the matter.

(3) If the conciliation is going to focus on the merits of the parties' positions, it will be helpful to have
considered this matter.

What happens if conciliation succeeds?

The agreement will be put in writing and signed by the parties. The agreement can be enforced in the usual
way.

What happens if conciliation fails?

If conciliation 'fails' the parties are free to pursue other dispute resolution mechanisms. Conciliation can be
used as part of a litigation or arbitration process. The Commercial Arbitration Act, 1985 provides that an
arbitrator may act as a conciliator in arbitration proceedings.

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Adjudication
What is adjudication?
Adjudication is the process for rapid resolution of disputes about payment for construction work in Western
Australia established by theConstruction Contracts Act, 2004. A copy of the Act can be accessed from here
(http://www.dhw.wa.gov.au/Files/ConstructionContractsAct2004.pdf)

What sort of disputes can be adjudicated?

Only claims made under a “construction contract” can be dealt with by this process. The definition of
“construction contract” in the Act includes contracts for construction work, the supply of goods to site, the
provision of related professional and on site services. Claims include both claims by a contractor for
performance of work and claims by a principal against the contractor.

How are adjudicators appointed?

Adjudicators may be nominated in the contract, selected by the applicant or selected by a “prescribed
appointor” under the Act. Adjudicators must be registered under the Act.

What is the procedure for adjudications?

The procedure for adjudications is set out in the Act and the Construction Contract Regulations, 2004.
Potential claimants should seek separate advice concerning these requirements. In broad terms, an
application must be served on all the parties to the contract and the adjudicator or appointing body within 28
days after a payment dispute arises. This time limit cannot be extended. If the claim is not made within 28
days, a claimant cannot pursue adjudication under the Act in respect of that dispute. However, this does not
stop the claimant suing in court or commencing arbitration proceedings.

The respondent then has 14 days within which to respond. The determination must be made within 28 days
after the initial application (unless the parties agree to extend time). Generally the determination will be
made on the basis of the parties’ written application and response.
What is the effect of an adjudicator’s determination?
An adjudicator’s determination may, with the permission of the Court, be enforced like a Court judgment.

Is there any right of appeal?

Generally there is no right of appeal from a determination of an adjudicator under the Act. However, if there
are any further proceedings between the parties (such as arbitration or litigation), the parties are not bound
by the adjudicator’s determination.

Do I need a lawyer?
Generally parties to a dispute are assisted by lawyers. The adjudication process is, however, intended to be
informal and simple.

What about cost?

The costs of the process overall depend on the complexity of the claim and the amount of material
submitted by the parties. Generally, the parties must pay their own costs and must share the adjudicator’s
costs.