A Pure Gold Day of Excellence in ADR
The inaugural Australian ADR Awards Conference, held at the prestigious The Mint in Sydney’s legal district, marked a significant milestone in the advancement of ADR in Australia. The event, themed “Pure Gold: The Minting of Australian Dispute Resolution,” brought together over 30 experts from various sectors of the ADR industry from within and beyond Australia. A notable highlight was the insightful discussion featuring Her Excellency The Hon. Margaret Beazley AC KC, Governor of New South Wales, which underscored the evolving importance of ADR in resolving disputes effectively.
Her Excellency’s conversation illuminated the critical role ADR plays in today’s legal and civic frameworks, drawing on her extensive experience to illustrate how ADR strategies have become more vital than ever. The Governor’s dialogue offered a unique perspective on the adaptability and innovation required to meet the changing needs of society, reflecting on how ADR processes contribute to a more accessible and equitable justice system. Such discussions throughout the conference emphasised the dynamic nature of ADR, showcasing its expansion beyond traditional boundaries and its growing influence in fostering resolution in complex disputes across all sectors of civil society.
The conference not only highlighted the theoretical underpinnings of ADR but also provided practical insights into its application, from technological advancements to environmental dispute resolution. Through panels, workshops, and networking opportunities, attendees were immersed in a comprehensive exploration of ADR’s potential to drive real-world change. The event represented a confluence of tradition and innovation, offering an unparalleled platform for professionals to learn, share, and collaborate, thus enriching the ADR community and reinforcing Australia’s position as a global leader in dispute resolution.”
Australian ADR Conference 2024 Gallery
Special Rapporteur
Liam Cross
My name is Liam Cross, I am complex commercial disputes Associate at Quinn Emanuel. I have the honour and privilege of being the Special Rapporteur of this year’s dispute resolution conference.
Acknowledgement of Country
I would like to acknowledge Gadigal people of the Eora nation; on whose land we meet on today. Sovereignty was never ceded, and we meet on the lands of a people whose culture is one of the, if not the, oldest in the world, a culture with rich and ancient dispute resolution practices. I express my hope that the contemporary Australian legal industry will open itself to learning these practices from our first nation’s people, should they be willing to teach us, and similarly express my hope that the Australian people as a whole will soon open their hearts and support our first nations’ peoples request for constitutional recognition.
My Thanks
I would like to thank the ADC for organising today’s event. To the formidable Deborah Lockhart and to the team of amazing associates and interns – Josh, Yashas, Cherie, Grace and Rachel.
Introduction
And now I have the seemingly impossible task of providing insights. If I could, I would keep you all here for another 8 hours and give you a play by play of exactly what was said, as everything was incredibly insightful. But, for me personally, the greatest insight was the simplest: that at the heart of every dispute is a person who has been hurt.
Now, I became a lawyer because my dad told me it would suit my natural skill set – being stubbornly argumentative. Or rather, I didn’t become a lawyer precisely because my dad told me it would suit me. But after muddling through a couple of other careers, I conceded that he was correct (though please don’t tell him I admitted that). So, raised on a diet of Suits, Law and Order and Legally Blonde, I believed that to be a disputes lawyer was to be the arbiter of right and wrong; that it required establishing a bravado, a veneer of unshakable confidence and, sometimes, righteousness, in pursuit of what is best for our client. A win.
Indeed, in my career I have come across many disputes lawyers who still maintain that philosophy. But what has become clear, especially throughout the course of today, is that winning isn’t always the best thing.
Today we have had the privilege to hear from some of the most esteemed voices in the legal industry; from names that I have heard spoken of with reverence and, occasionally, fear; and I would like to extend my personal thanks to each of our esteemed presenters and panellists for sharing their insights.
And the insights really started early and didn’t stop. ADC’s CEO Deborah Lockhart opened the day noting the inevitability of conflict, but also the utility of conflict. What has become apparent, as we have heard from pioneers in many different areas of the law, is that conflict is inevitable. And, though each conflict may have different subject matter, they all have one thing in common: because conflict is a human experience, and at the heart of all conflict is a human being who feels they have lost something.
Speakers
Her Excellency the Honourable Governor Beazley posited that the perception of fairness within our public institutions and the rule of law is fundamental to the stability of society, and that mediation, and all forms of “alternative” dispute resolution, provide an opportunity for human beings to get a sense of justice from the legal system.
And that perception of fairness is best achieved when people feel seen and heard. For this to happen, practitioners need to understand their client’s dispute before they can resolve it – because mediation should happen at exactly the right time.
Identifying when that time is, and then being able to facilitate it as a mediator, is both a science and an art.
As the Honourable Wayne Martin AC KC put it, mediation provides parties with an opportunity to “fashion the future” in a way that litigation does not. As Mr Jack Ellis said, there are parties at a mediation who fundamentally believe that the relationship with the other party is beyond saving, but if you ask them if they want to save the relationship, they say yes.
So how do we bring these disputes back from the brink?
Well, as Mr Ellis put it, our job is to care.
Sounds simple enough right?
Care. Listen.
Done.
Now I would like to pause here to repeat a conversation I recently had with a senior lawyer in my team.
As I mentioned I work in complex commercial disputes, which can often mean everything that doesn’t fit into a neat box. I asked this senior lawyer what she considered to be her area of expertise. Insolvency? Fraud? White collar crime? It was none of the above – she describes her area of expertise as “disputes”.
Which, as is becoming apparent to me, is a much more apt description of modern-day litigation teams.
So how do we become experts in disputes?
We can ask a conflict coach.
Dr Sam Hardy taught us the value of process design, and identifying the story that our clients are telling themselves to help them change their mindset, build their capacity, and help them approach the conflict in a way that will allow them to obtain a productive resolution.
Mr Jack Ellis added that his belief in letting parties sleep on the proposed solution is beneficial to guiding the parties to a mutually satisfactory solution. Because a settlement needs to extend beyond the end of the mediation, a settlement needs to be more than a win.
Now, when we think about negotiating settlement agreements, our first thought is family law, where emotions run the highest. But, as Sean Marriott showed us, even the biggest commercial disputes still, at their heart, have a human being who feels hard done by. And Sean introduced us to the importance of the right forum, which Justice Preston stepped through in more detail later on the day.
Mr John Rundell showed us the importance of agreeing to the terms of the dispute, or specifically, the question for determination, when sending a dispute to expert determination
The Hon Wayne Martin and Hon. Tom Bathurst, in their illuminating discussion, provided insights from the mediation room, again touching on this idea that getting the best result for clients in a dispute requires knowing the dispute, knowing what the client wants, and being creative in finding ways to obtain that for them.
One thing that is crucial to a successful mediation, is recognising that mediation is a skill set adjacent, but different to, that of litigating a zero-sum dispute. Which is why The Hon. Tom Bathurst does not like opening statements in a mediation… and why I will never write one again.
Justice McClelland reminded us that, although every dispute and every mediation is different, what needs to happen every single time is that the human being whose way of life is about to be radically altered needs to feel recognised and heard, because that is imperative for the success of the mediation process. It is our job as practitioners and mediators to make sure that happens, while also helping our clients identify what exactly is important, to see the forest through the trees.
An art, and a science
As Justice McClelland said, “venting can be cathartic, but it is rarely productive”. His Honour also touched on an idea that has come up multiple times today – that a satisfactory outcome earlier in the dispute is often better and preferable to a perfect outcome later in the piece.
So how do we know when to try and settle? By being experts in disputes, and in dispute resolution.
The practice of which was so succinctly articulated to us by Justice Preston, whose work at the LEC has been, as I’m sure we can all agree, transformative.
Justice Preston again took us back to the art and science of resolving disputes, reiterating the skill that is identifying the timing of when to attempt dispute resolution. But his Honour took us one step further, explaining that there can be more than one attempt. Where it was once the case that the options were either litigate or mediate, there are not multiple formats through which the parties can attempt to resolve the dispute. Crucially, bespoke tailoring of forms and forums to suit the dispute will provide the parties with the opportunity to resolve the issues that matter to them.
As Mary Walker OAM explained: People have opinions and people want to be heard, so triage is important. Working out the process with the parties will provide the parties with the opportunity to tell you what they need to resolve and how. Because people want a voice, and being a great lawyer requires more than advocacy skills, it requires being a great problem solver.
It also requires everybody to keep learning, as this space, and what is considered best practice continues to grow and develop.
After lunch we witnessed a very entertaining debate, and I would like to thank our debating teams, who I thought were all 100% correct in everything they said. Though I did somewhat disagree with our adjudicators, because I thought the negative team was slightly more correct.
What did become clear, through the push and pull of the debate, is that ADR is still growing, and though AI will no doubt bring with it efficiencies that will transform the legal industry, we will always need a human practitioner to shepherd a dispute, because the most painless way to guide parties through a dispute is to make sure they feel heard, and that their humanity has been acknowledged.
Which I am not currently getting from AI. If anything, the social media apps on my smartphone make me feel worse.
And, obviously, settling a dispute is worthless if it’s not recorded.
So, as Dr Yavari explained, make sure it’s meticulously drafted, and all jurisdictional issues are considered.
Listen to Mr Kristian Maley and be aware of falling into the trap of solely fashioning the future, because we need to make sure any settlement works within the frame of the contract that is being disputed.
And from Mr David Jenaway – ensure settlement is within the right jurisdiction, and that it is actually by consent.
As Ms Edwina Kwan said: you need to make sure the details are there. But, before you get to that point, as noted by Ms Kwan, make sure that settlement is actually desired.
As we now know – knowing when to attempt to resolve a dispute is a science and an art.
And the skills that are required to be able to pull all these strings together, whether the dispute is about land degradation, custody orders, construction contracts or misleading and deceptive conduct…. which seems to somehow apply to all of the above… are the skills that modern disputes experts need to have in their arsenal.
And if you don’t know where to start, turn to the Singapore convention.
Dr Rajesh Sharma, I think I speak for all of us when I humbly request a copy of your slides.
In closing, I would like to thank you all for attending today, I hope you got as much out of the event as I did, I would like to thank the Australian Disputes Centre and Deborah Lockhart for organising, and I would like a drink.
So, I’ll see you in the foyer.
