29 October 2025
The Hon. James Allsop AC
Some modest reflections upon dispute resolution: the value of a dispute resolution culture
I acknowledge the Gadigal People the traditional custodians of the land on which we gather and pay my respects to their Elders past and present.
I am grateful to the Chief Justice for his invitation to speak this evening. It is now more than two and a half years since I ended my full-time judicial functions, after almost 22 years as a judge. I am now privileged to sit, part time, on three foreign courts: one appellate and two mixed appellate and first instance. I also act as a mediator and as an arbitrator.
I loved being a judge and still do. I also deeply enjoy arbitrating and mediating. That should not be misunderstood. I find the judicial process, the application of judicial technique, the nature and growth of law and legal principle, and the control and application of this unique form of power, having as its dominating theme the protection of the individual, the group and society, fascinating and deeply rewarding. It is not just intellectual satisfaction from the challenge, it is also being part of the human engagement in the sovereign State’s duty to its society and people in the discharge of the court’s role as a vital part of civil society.
I hope that does not sound pompous. Courts are the alternative to the gun and the gang. They protect society, groups and individuals by their authority and power, and by their skill, capacity and independence. They protect and foster alternatives to curial resolution, such as arbitration, mediation and expert determination, by their capacity to enforce the outcomes of those alternatives. The efficacy of a curial system depends on the existence and health of a very fragile and easily undermined social, political and constitutional understanding and compact. The compact is unique to each society. It does not depend upon the existence of one political or social model. This compact and the role of courts in all societies has some inhering characteristics that are recognised by all judges. So often in my experience, when I spoke with judges of very different societies and systems, very soon, discussion would turn to common questions of method, of justice, of respect, and of the dignity of (those the Indonesian judges call) “justice seekers”.
Why begin a talk on alternative dispute resolution with reflections on being a judge? I do so because the judicial framework and bodily condition of a society’s judicial system will condition, at least in part, the nature and character of the alternatives in ADR. Two propositions illustrate this. First, a society with a weak or perhaps venal or corrupt judicial system will have an ADR system outside and, as far as possible, divorced from the operations of the judicial system. That will be its point: to separate and quarantine people from such evils. Secondly, a very senior solicitor in Australia once said to me that one of his United States clients once said to him that the problem facing arbitration in Australia was that the courts were so good.
These comments do not, however, deny the need for, or utility of, arbitration and curial determination being importantly separate and distinct even in the healthiest of legal systems. Depending upon the subject and context, arbitration can be and sometimes should be the domain of non-lawyers. In commodity trading disputes and many other fields the arbitral process is undertaken by commercial people. There is a growing acceptance of this healthy necessity. Further, the best respect that the courts can show to arbitration is by a tendency for non-intervention.
I hate the word “eco-system”, but I will use it. Courts play a vital role in the whole and wider dispute resolution eco-system. That is not to encourage the judicialisation of approaches to solving disputes that best thrive in a different environment. However, the proposition does recognise the importance of courts to the health of a whole dispute resolution system.
It is unfortunate to taxonomise and label ADR as everything other than curial litigation, as if they were truly and for all purposes separable, distinct and different. Nietzsche said that all taxonomisers were evil. Evil may be too strong a word: destructive of thought and subtlety when wholeness is important is certainly better.
The most important features of any court system that are essential and underpinning for the wider dispute resolution system, which can also be called and should be conceptualised as the (wider and whole, though disparate) Justice System, are indefinable, but experientially and practically well known: skilled, independent and impartial, efficient in despatch, recognising the dignity and vulnerability of all before them, and recognising the basal importance of the rule of law and the antinomies and complexities involved in the application of principle. The rule of law is not only the law of rules, but also of the independent and impartial resolution of conflict, of controversy, by rule, principle and precept in reconciling antinomies and opposites.
This is not a recognition of endemic uncertainty. It is not the recognition of a form of arbitrariness. It is the recognition of the task of the employment of State power, fairly and with all those qualities, to quell the controversy. In doing this, trust and loyalty are built and violence and conflict avoided and quelled: not through force, but through the engagement of a timeless species of power and by the human recognition of the justice of the process.
These, jurisprudential or even philosophical, expressions also help to illuminate the nature and importance of the alternatives to the use of this State power. It is a precious resource: absolutely essential in its role, properly understood. The alternatives both free it up in time and space, but, far more importantly, also support it collaterally and take their form from some relationship with the judicial power. Such relationships may well involve the important removal and substantial modification of features of the judicial process that may impede the relevant alternatives.
This is not to say that ADR, whether conciliation, mediation, arbitration, expert assessment or other form depend fully (or even in some cases, at all) upon the judicial system. There are, of course, critical intersections: recognition and enforcement of arbitral awards, and now under the Singapore Convention, mediation outcomes. But hugely importantly, and often ignored, is the dispute resolution culture established by the courts in the litigation culture they spawn. This is real, but at time evanescent.
Let me interrupt the flow by setting a little context. Those of you who know me will appreciate my views on context. Those views are not anti-black-letter-law in its place. (The phrase itself defies definition and with the greatest of legal ironies can only itself be understood in the context of its use.) Rathe,r the views spring from the sensible reality, demonstrable by one’s everyday life experience that words cannot be understood and applied free of context. To accept this for words, but not in the framing and expression of rules is almost childlike – amusing, if it were not productive of so much harm in the application of the law.
Justice O’Callahan in the Federal Court in Melbourne has an interesting work of art on his wall that says: “the world is ruled by language”. When I saw it, I said to him “but understood by context”. He laughed, pondered and agreed.
Australia is very good at dispute resolution. We have been doing it a long time as a formed modern nation. I leave aside, not out of disrespect, but from my own inadequacy, First Nations’ experience in dispute resolution for millennia in this country. But as a modern nation State formed in 1901, ADR was a constitutional pillar at the foundation of the federal compact. Placitum (xxxv) of s51 of the Constitution that identifies heads of Commonwealth legislative power reads: “Conciliation and arbitration for the prevention and settlement of industrial disputes beyond the limits of any one state”. The giving of this source of power to the Commonwealth Parliament was born out of the bitter and sometimes violent disputes of the severe depression of the 1890s. I am not equipped to give a social history of the role of the Conciliation and Arbitration Court and Commission (before and after the Boilermakers case in 1956) but it is a safe comment, I hazard to say, that the institution and the process of conciliation and arbitration especially in the 1920s to 1950s played an important role in dampening and reconciling class divisions and conflict in this country, for the better.
Also, from the 1980s (that is for more than 40 years) the critical place of mediation in the dispute resolution system has not only been recognised, but has been seen to flourish. The inspirational work of Sir Lawrence Street in this State firmly established the habit and place of mediation in civil litigation, including especially commercial litigation. It is now the case, and I would dare say that it has been the case for decades in Australia, certainly in Sydney, that no competent adviser would permit a client to undertake litigation in court or before an arbitral tribunal without first undertaking the process of mediation, genuinely and in good faith, at least when there are not more bespoke methods or structures of multi-layered clauses with engineers, dispute boards and the like. The flourishing existence and successful outcomes of such frameworks in infrastructure and construction contracts and projects is an often un-sung success story in this country.
Mediation, as an important part of the whole dispute resolution system has been encouraged and nurtured by the development of a litigation culture in the courts, especially in courts such as the Commercial List, the Equity Division and the Court of Appeal in New South Wales that has seen flourish not only the despatch of commercial cases in court, but also a mediation focus that sees the settlement of cases a priority.
The development of that culture can be credited significantly to a giant legal figure (Andrew Rogers) who only recently passed away, in February 2024. His lasting (I hope) influence was built on a forceful, persuasive and charming personality with a middle European intuition of humanity and of human strength and weakness. He cajoled (fiercely, but not bullyingly in today’s victim-focused taxonomy), flattered and charmed people into doing litigation his way. His way was that the real issues, and only the real issues, were to be the subject of concern, no standardised rules or approaches governed. (There was one rule: there were no rules.) Thoughtfulness and innovative approaches were demanded for every case, since every case was unique. He taught counsel and solicitors to think, to fashion solutions to their clients’ problems, to co-operate and never, ever, to obfuscate or to be obstinate or intransigent. The feared look, the calmly expressed, but chilling words: “not in my Court you won’t”, “why don’t you answer the nice man’s questions?”, or “take this down Betty” or “Don’t take this down Betty” (his court stenographer) when clinical despatch was about to occur, raised and taught at least two generations of solicitors and barristers (and judges) how to behave and how to approach and run litigation. His was the gold standard mimicked by courts all around Australia. His approach is now the foundation for case management around the country. It was a decade or more before Harry Woolf and his eponymous reforms. It was not codified into a published 200 page practice book that may choke and “proceduralise” a court system. It was experiential, practical and real, learned by experience, practice and live teaching by a great judge and a great persuader and organiser of people: by cajoling, sometimes not gently, persuading, flattering and by example. He was the hardest working of judges and he knew every one of his court files backwards.
I say all this not just to add to the Chief Justice’s fine obituary of Andrew Rogers last year, but also to emphasise that litigation culture is a shared endeavour of judges and the profession. If discipline, imagination, hard work, skill and co-operation in solving problems become the demanded approach of courts, such feeds the ADR mechanisms around it, not just as appendages, but also as independently operating features of the whole dispute resolution system.
If co-operation and acting in good faith is demanded by courts in litigation before them, it will be expected of the same practitioners in how they approach mediation, or arbitration, or conciliation or in obtaining an expert determination. If the conduct is demanded in the more adversarial process of litigation, it can permeate, through habit, the conduct of the less adversarial or non-adversarial processes that form part of the wider system.
This is a huge responsibility for the profession. The profession’s part is vital in developing and maintaining this culture. It should be a recognised responsibility.
I know that this is not concrete in its identity. But it is real none the less. An indefinable approach to solving the problems of disputes is important and foundational to a healthy operating whole that engages adversarial and non-adversarial approaches. All are problem solving mechanisms and approaches. There is a relationship amongst all without or with but few defined connections.
May I illustrate by a discussion of the co-ordinate development of court-annexed mediation. I will speak of my experience and knowledge of the Federal Court. In doing so I am not to be taken as minimising the similar developments in many courts around the country.
The first aspect of the Federal Court’s mediation work that is worthy of wider recognition has been that undertaken in the Native Title area since the mid-1990s. The work of the Court since the passing of the Native Title Act has been remarkable. It has not been perfect. Nor is the Native Title system. But the contribution of the Court, its Judges and Registrars and of the litigants themselves, both indigenous and non-indigenous who have made the system work has been one of the foundations for Reconciliation in this country. In significant part this is attributable to how, not just what, the Court and others have done. It began with recognising country, by sitting on country, and not just in city courtrooms, so often perceived as the natural home of the white power structure. The Court has become the trusted court of indigenous people, as much as the trusted court of nonindigenous people. That confidence in the court system is not universal in what are often seen as “white courts”. It is important and something of which the Federal Court can be rightly proud.
A significant part of that confidence has arisen because of the effective mediation of the vast majority of the Native Title claims. That mediation carried out by the Court has brought a trust between and among the Court, its Judges, Registrars and Officers, indigenous claimants and non-indigenous landowners. Very often part of the mediation process has been the development and setting out of historical knowledge that can be understood by both sides: the history of the land under question. The empathetic understanding of the other side’s position and history leading to compromise and dignified mutual respect has been at the heart of many of the settlements. This is the true basis for Reconciliation, not the decrying of historical reality and not the consigning of a shared, if historically imposed, sometimes violent, unjust and fraught, mutual history to be the foundation of nothing but guilt and self-hatred. The taxonomy of charged labels, however much they may reveal a true theme (whether “black armband history” or “settler colonialism”), as a substitute for the recognition of complex and confronting reality, historical and present should be eschewed. Life in all its aspects, history and dispute resolution is more complex than that; all require more than charged labels. History has brought us to where we are; the history is to be confronted and understood so that empathetic understanding of a shared future can develop based on dignified mutual respect.
In its own way and without boasting fanfare, mediation in the Federal Court has made its contribution to this aspect of our critical national task.
If one stops to consider this Native Title mediation process, one realises that this is how all mediation works: the empathetic placement of self in the position of others in the search for common ground, and appropriate and fair concession.
The other feature of court-annexed mediation has been its general development in the Court over the last 30 years as a crucial tool in managing the Court’s business. (As I said earlier, this has been a feature no doubt of other Courts, but my knowledge is of the Federal Court).
Under the sponsorship of two Principal Registrars and a number of District (State) Registrars, Court staff in the Registry undertook regular mediations at the requests of Judges. They were not one or two day affairs, but often an on-going relationship was set up with the parties and representatives in the case and Court staff attended upon them in an ongoing dialogue that was usually highly successful.
Meanwhile, as with many superior courts, the system of active case management became the norm of most litigation. Sometimes this was in the form of a docket system, sometimes in specialised lists run by experienced case managing judges.
Mediation across Australia has also become institutionalised with comprehensive training and setting of standards. The recent successful mediation conference of L’Union Internationale des Avocats held in this very room displayed the place Australians play in innovative imaginative dispute resolution.
It is no exaggeration to say that dispute resolution and mediation in Australia has developed to a standard and with procedures, habits and culture that are are the equal of anywhere in the world.
What of arbitration? What I want to say is not a thorough going analysis. It comes from my observation over the 45 years that I have been in the law. My remarks, I hope, will be seen as hopeful and productive.
Whilst court process and mediation have, at least in commercial courts, been undertaken extremely well, for many years arbitration languished. I recall my first brush with the International Arbitration Act in 1994 when I had just taken silk. A mandatory stay of a maritime proceeding in the Federal Court was being sought because of a clause providing for far away arbitration. I found this shocking as I read s7 of the Act for the first time. Never: unconstitutional! I thought intuiting the unsuccessful argument in TCL Air Conditioning 25 or so years later. This was a very Australian response, driven by a view of judicial power embedded within the Commonwealth Constitution. I dare say that it would not have been the reaction of non Australians.
How things have changed. The profession and the Bar has a focus on arbitration absent in years past. This has been partly brought about by the law becoming an international profession. Australians practice all over the world. Large foreign law firms have set up here. A London solicitor said to me recently (not without a tinge of a vexed tone) “it is hard to find an arbitration in the English-speaking world that has no Australian somewhere in the room”.
This fact is in part because of the plethora of young Australians practising overseas and the Australian love of travel. However, they are well sought after largely because of the very high quality of their legal training, for which we have our universities (and the lightly-hovering Council of Chief Justices) to thank.
The Bar has also finally woken up to the existence and importance of arbitration, in particular international commercial arbitration. No longer is the epitome of commercial legal practice viewed only as a thriving practice in the commercial lists of this country. Barristers and Chambers have their eyes closely on arbitration in Australia and elsewhere.
Australia’s mining, resource and construction industries give a solid base of arbitral work that engages the profession.
But international commercial arbitration is thin on the ground (at least comparatively with major centres in the region such as Hong Kong and Singapore). Why is this so? It comes in significant part from our physical position and constitutional structure. This constitutional structure gives us strength, but also a perceived weakness.
First our strength. Our federation is a strength: eight States and Territories with diverse economies, with at least 4 or 5 first rate commercial centres, with first rate judicial, legal, accounting and service professions. This is a huge continent. One geographical sector faces Africa, India and South East Asia. One faces all of Asia, and one faces South and North America. The three eastern commercial and legal centres are as close, if not closer, to the west coast and the Gulf States of the United States as are Singapore and Hong Kong. Our legal professions, financial centres and accounting and related professions are as good as any in the world based on universities of the highest calibre.
These characteristics qualify Australia, with its temperate climate, low political risk, good hotels and deep legal and social infrastructure as ideal seats or venues for arbitration.
Federation is, however, a weakness, as well as a strength. Not only the lack of a gravitational pull of one large centre such as London, Hong Kong or Singapore, but also the endemic internecine squabbling and posturing by professions and courts as to who is, and where is, best. This is always disappointing: not only disappointing, it is counterproductive.
As importantly for governing law clauses in or adjacent to arbitration agreements, there is no such thing as Australian law: there is Commonwealth statute law, one common or general law and State and Territory statute law.
In my experience, clients become quite angry at having to pay good money to have federalism and federal jurisdiction explained to them. One senior Scottish banker client once said to me as I was explaining federal jurisdiction to him and why we had been transferred over our opposition from the Federal Court to a State Supreme Court: “It’s uncivilised”. I responded “I agree. I would not wish devolution on my worst enemy and my mother’s family were Scots”.
I have suggested in the past an answer to this: the creation of a bespoke and flexible Australian commercial law that could be created as a chosen non-national law, crafted and able to be adopted and amended or adapted to govern a contract, recognised and given stature by the Parliament in the International Arbitration Act. There has been no interest shown by any suitable arbitral sponsor. I have shelved it as idea or project. It could be a project for the Australian Academy of Law.
Let me conclude by circling back upon some of the things I have raised. First, mediation is a vital part of the Justice System, as part of the whole Dispute Resolution System. It underpins the judicial system by giving disputants agency to resolve their own controversies. It helps embed trust in the system by giving the parties confidence that resolution is possible without the need to litigate. It injects a valuable cultural aspect to dispute resolution of non-adversarial problem solving and the recognition that answers to complex human problems are best solved consensually rather than imposed in a binary fashion.
Crucial to its success, however, is the correct mindset. Many disputes in human relationship areas such as family disputes or neighbour disputes and the like can be highly emotionally charged. That, however, does not mean that they are hard to settle. People who are emotional can be calmed and even if they cannot be, they often instinctively realise that it cannot go on like this.
Commercial disputes, often, though not always, have less emotion. They are often advised upon intricately and expensively. Positions are taken; lawyers have stakes in their advice, reputation and pride. Sometimes one hears both sides saying to the other: I am here in a bona fide and good faith way to settle this. Persuade me why my position should be doubted and I will pay you something or shave what you should pay me. In my experience, it is sometimes difficult to persuade such people that their bona fides are accepted and welcome, but of little use because their frame of reference is simply wrong. Mediation (along with successful advocacy) requires a degree of professional and human empathy. Put yourself in the other’s position and reframe all factual and legal assumptions from that different perspective or empathetic framework. Now look at the world. It should look different.
The task is to assess the value of the risk that the world might be as viewed by others and to consider what is common ground and what is mutually beneficial, and what is an acceptable compromise.
But what of the legal advices in the way on both sides? They should be left where they lie with the recognition of the vision that litigation is like a desert littered, under a burning sun, with the bones of once shiny well-formed arguments: cut down by oversight, by mistakes of judges, by evidence not accepted, by whatever cruelty of life that loses the day.
The watch word of the experienced litigator or mediator should be: No case is so good that it cannot be lost.
Also, what is the cost of a broken commercial relationship? No parties have ever become bonded as friends or as commercial partners by the process or experience of litigation against each other. Companies are like cats. They are people too. Litigation usually breeds resentment and revenge, not reconciliation.
That said, a Dutch dredgerman once said to me when I said to him that he and his company could not possibly think it wise to fight a six-month case over the small (but now apparently intractable) difference between the parties: “James, you do not understand. The company does not settle for sums that are not fair. Settlement requires fair compromise. To be known that we settle for an unfair sum is the end of our reputation”. Eventually, the other side understood this and offered what was fair. This taught me about commercial reputation, leaving something on the table for the other person, and commercial dignity.
A final word for the profession in this light: no one, especially your client, appreciates, or benefits from, you preserving your position in your advice in a mediation. It is not about you. It is about a fair compromise having seen the world from both sides now (to quote Joni Mitchell’s refrain).
ADR has the capacity to reinforce and support the judicial and wider dispute resolution systems. It is a fundamental part of both, even when it is divorced from the judicial system: part of, but separate from. An antinomy in life to remember.
ADR also has the capacity to give a form of justice through the agency of the disputants, without the perils of the judicial system or arbitral resolution. It is part of the Justice System.
I do not think we have fully explored the relationships and interconnections that are possible. Take arbitral resolution. Arbitration has a distinct life and structure away from litigation. It is often put as the efficient and less costly alternative. That is or may be so when the comparator is some courts and some litigation that have the mark of the swamp and of the theatre of the absurd about them: when once entered they can never be left. But efficient commercial courts are another thing entirely. That said it is often the sense of control and ownership in arbitration that is vital: a sense of agency.
Arbitration also has a role potentially co-ordinate with the judicial system as well. It is little used and little talked about. This co-ordinate role requires court legislation to be in the appropriate form. I am talking of a model such as ss 53A and 54A (and associated sections and rules) of the Federal Court of Australia Act. One of the great problems in many complex commercial arbitrations is the bringing together of (or the lack of capacity to bring together) all relevant parties to the dispute in one reference. Gallons of ink have been spilt in writings on the practical and theoretical problems of consolidation. It has become a favourite topic of recent revisions to institutional rules. If parties to an arbitration agreement have the problem of one of the vital actors outside the clause they can agree temporarily to suspend the clause, go to court with the view of joining the third or fourth party, whether by long arm jurisdiction or not. Once the additional parties are joined they can attempt to persuade the outsider to submit voluntarily to arbitration. If they agree, well and good. If they do not agree to this the Court can order that the whole dispute be heard by a referee, whose report can be adopted by the Court. In practical result, if not character, this would be an arbitration reference by another name, though its enforcement would be as a judgment of the Court once adopted.
A court reference to arbitration must be consensual, but not a reference to a referee, or to a mediator or to a “suitable person for resolution by an alternative dispute resolution process”: s53A(1)(c).
As to non-consensual mediation, Hamilton J in Remuneration Planning Corporation Pty Ltd v Fitton [2001] NSWSC 1208 at [3] said:
“This is an area in which the received wisdom has in my experience changed radically in a period of a few months. A short time ago there was general acceptance of the view adopted by Barrett J in [Morrow v Chinadotcom Corporation [2001] NSWSC 209, [44]–[46]], that there was no point in a mediation engaged in by a reluctant party. Of course, there may be situations where the Court will, in the exercise of its discretion, take the view that mediation is pointless in a particular case because of the attitudes of the parties or other circumstances and decline to order a mediation. However, since the power was conferred upon the Court, there have been a number of instances in which mediations have succeeded, which have been ordered over opposition, or consented to by the parties only where it is plain that the Court will order the mediation in the absence of consent. It has become plain that there are circumstances in which parties insist on taking the stance that they will not go to mediation, perhaps from a fear that to show willingness to do so may appear a sign of weakness, yet engage in successful mediation when mediation is ordered”
To put it more shortly: You can lead a horse to water, but you can’t make it drink… but they usually do.
Imagination should be deployed in how the integers of the dispute resolution system and the alternative dispute resolution system are engaged in.
In this exploration for unused or underused connections, I have never (except for a brief time) been a supporter of using serving judges as mediators. It has the tendency to undermine the authority of the court. A certain distance from the end process of final curial resolution is important.
Australia has been at the forefront of dispute resolution for many years. It has respected and skilled institutions such as ACICA and the ADC. It can continue to develop by appreciating its strengths inhering in its universities, its legal professions, its judiciary and its ADR institutions and practitioners. Courts have a role to play in fostering all branches and skills in the process. That is not to set up a necessary connection between courts and arbitration or other ADR institutions or processes. It is to recognise the antinomy of a oneness and a separateness. It is also to recognise the potential of developing a distinctive dispute resolution culture of problem solving. If solicitors and counsel bring the kind of problem-solving culture of which I have spoken to arbitration and all branches and methods of dispute resolution a national character of dispute resolution will develop or continue to develop and thrive.
For instance, this will enhance the innate flexibility of arbitration that is very difficult for any court to match. The Australian profession has the capacity to do this. There should be a comprehensive recognition that this cultural aspect of dispute resolution is critical to building a national reputation.
One element of this is the court’s encouragement of, nay demand for, in their judges and the profession, civility of conduct. I will not use a label of taxonomical emptiness such as “bullying”. This is the co-opting of a highly relevant idea into a meaningless label. It reflects a modern cast of mind of seeing utility in abstracted labels replacing human experiential narrative expression. It is a significant vice of our modern culture. What is and should be demanded is civil and considerate conduct that expects competence and strength of character of judges and practitioners, and that recognises not only the vulnerability and dignity of those who come before institutions of power, especially courts, but also the understanding of human behaviour in stressful contexts.
Andrew Rogers was a judge who inspired great caution and not a little concern (I deliberately avoid the word fear) amongst practitioners, especially young ones. He demanded intelligent hard work. It was at times nerve-wracking to be before him. He was, however, generous and decent in his interactions with people. He inspired a degree of concern, but only to attend to the task as well as possible. He was never rude, though could be blunt: he was busy. To use another term now abused by usage: you were not intended to feel “comfortable” in his court. He said to me once as a busy junior in his List, after I had allowed one senior counsel to wriggle out of a date for hearing by saying he could not meet my late amendment (when the amendment was a formality of something always part of the case): “But Mr Allsop senior counsel says he cannot be ready. What am I supposed to do, tell him I don’t believe him?” He paused. He was vexed with me (and with senior counsel, whom I do not think he believed one little bit). After calling the next matter, he rather made both points clear. He turned to me and said gently, in a tired, but knowing voice: “Mr Allsop, I am trying to run a list. Sometimes I need a little help”. I apologised. He said, in a kind voice: “Not at all”. This essential humanity restored my confidence, and gave a warning to senior counsel.
These kinds of considerations feed the necessary culture of a dispute resolution system: a demand for excellence; an approach to solving problems of clients by acting (in their several and respective interests) in a co-operative and imaginative fashion to devise the most effective and efficient way of dealing with the real issues in dispute (and only with them); a recognition of the vulnerability, but dignity, of the litigants, in that uniquely difficult position of having one’s fate in the hands of others; and the requirement of an essential human civility, even gentleness sometimes, and empathy, to soften and make more bearable the often inhering potential harshness of dispute resolution and of the court system.
These cultural approaches underpin all successful dispute resolution. If Australia can make them the hallmark of an Australian approach to dispute resolution it will become recognised around the world as a pre-eminent dispute resolution venue (arbitral, curial and ADR), the equal of any in the world.
I have referred to Andrew Rogers in this address because he should be recalled by later generations as a great judge who understood the power of a cultural approach to solving problems. He was also not only a judge, but later, after judicial retirement, a pre-eminent practitioner in the ADR system to which he brought innovation, intuition, energy imagination and above all force of personality.
I miss him very much.
Finally, may I illustrate what I have been saying by giving you an example from my short arbitral experience since 2023. I had the privilege to preside on a three person panel in an Australian arbitration of some complexity over a pricing question of some magnitude. The carriage of the matter was marked by consistent civility, co-operation and efficiency of the two firms of solicitors at every level, and by their counsel at the hearing. It led to an efficient and swift despatch at a fraction of the cost that would have been incurred had the approach been taken of combative assertion so often seen in other arbitrations and often in litigation.
The Australian profession should cultivate the kind of dispute resolution culture to which I have referred. It is not weak or effete to be civil and co-operative to the extent possible, as well as intelligent and imaginative, all in the interests of one’s client. Indeed, it is the epitome of professionalism of a character which is essential to employ once one recognises that every dispute is unique and best resolved imaginatively and without distracting and costly aggression and obstinacy. Efficient dispute resolution, whether ADR generally, arbitral, or curial is fostered and energised by a cultural approach focused upon problem-solving with the features I have described. It lies in the Australian character. It cannot be defined, nor reduced to procedures and rules. Combined with strength of purpose it defeats obstinate aggression. When combined with the undoubted scholarship and skill of the Australian profession it provides the foundation of Australia’s reputation in dispute resolution.
Sydney
29 October 2025