Flashcards in Week Six Deck (29):
- Conciliation is an advisory process and is recognised as a dispute resolution forum in the Commonwealth Constitution s 51.
A conciliator can be advisory but not determinative.
Conciliation is a process in which the parties to a dispute, with the assistance of the conciliator, identify the issues in dispute, develop options, consider alternatives and come to an agreement.
Conciliation and Arbitration Act 1904
○ Prevent lock outs and strikes
○ Establishes commonwealth court of conciliation and arbitration.
Conciliation and mediation
Similar processes. In both there is an impartial 3rd party. However, if the conciliator is operation under a statutory scheme they are no longer neutral. Conciliators have an advisory role regarding the content of the dispute while the mediator does not. In fact, conciliators can give expert advice on court outcomes etc. (this can be done by a evaluative mediator but not a facilitative mediator.
Advantages of lawyers in conciliation.
○ Advise the client on what the law is and help them argue.
○ Maintain assertiveness
○ Reality test
○ Draft the agreement
○ Explain the agreement to clients
disadvantages of lawyers in conciliation
○ If the lawyer is not familiar with the DR process
○ If not familiar with the relevant law
○ Attempt to interfere with process and structure
○ Request shuttle conciliation
Can model adversarial behaviour
where do conciliations occur?
○ Australian human rights commission
○ Fair work commission - unfair dismissal
○ Family law- conciliation conference.
- Case appraisal is a process in which a dispute resolution practitioner investigates the dispute and provides advice on possible and desirable outcomes and the means whereby these may be achieves (NADRAC, 2003, p4).
case appraisal and voluntariness
parties can be forced to attend case appraisal if needed.
- An adversarial process
- Can be voluntary or mandatory
- Impartial third person provides a decision based on law
- Parties select the arbitrator.
Arbitrator is often an expert in the field of dispute, a barrister or a retired judge.
similarities between litigation and arbitration.
- Both are adversarial
- Impartial 3rd party makes binding decision
- Written reasons must be given for the decision.
- Lawyers often involved to argue case
- A formal process
- With the exception of court ordered arbitration, requires the consent of parties
- Arbitrator usually selected by parties
Result binding only on the parties currently involved (no precedent)
s 51 Commonwealth Constitution
Commonwealth's constitutional power in s 51 has been interpreted as restricted to arbitration in relation to employer/employee disputes
arbitration and legislation
- States have introduced uniform commercial arbitrations acts so arbitration is governed in a much broader and more uniform fashion.
- Currently, the commercial arbitration act 2013 governs arbitration in Qld.
- Arbitration is domestic if the parties have, at the time of the conclusion of that agreement, have placed of business in Australia.
- Before the commercial arbitration act 2013 applies, the dispute needs to be domestic and commercial.
commercial arbitration act 2013
- The act applies to domestic and commercial arbitrations
- Parties must have entered into an arbitration agreement (s7).
- This may be a separate agreement to arbitrate or an arbitration clause in a contract (s 7(2)).
- The arbitration agreement must be in writing, however, there is a broad definition of 'in writing', which can include recordings etc.
arbitration clause example
- Arbitration clause example, resolution institute:
Any dispute or difference whatsoever arising out of or in connection with this contract shall be submitted to arbitration in accordance with, and subject to, resolution institute arbitration rules.
arbitration and voluntariness
- Some courts in Aus have the power to refer to arbitration without consent.
- However, in Qld, this must be with the consent of the parties.
commercial arbitration act features
- Voluntary: s 8
- Choice of expert arbitrator with expertise (s 10., 11)
- Confidential (s 27E unless parties agree otherwise).
- Arbitration award must be in writing (s31), but no precedential effect.
- Not bound by formal rules of evidence
- Awards are binding
- Limited grounds for judicial review (s 34 and s 34A appeal only on a question of law).
- Only the commonwealth can pass laws relating to arbitration arising from a dispute involving employees and employers.
- Commercial arbitration acts provide a more flexible approach to arbitration that enables disputes to be resolves cost effectively, informally and quickly.
advantages of arbitration
- Party control: ability to present views, input re process, choice of 3rd party decision makes
- Quicker and cheaper
- Final enforceable decision
- Objective process: expert evidence possible., third party decision maker.
- Legal representation addresses power imbalances.
disadvantages of arbitration
- Limited application (not all disputes suit arbitration)
- Process wealthy favours
- Objective, legalistic nature fails to adequately address conflict (doesn’t consider emotions).
Arbitration is virtually a private form of litigation.
arbitration and the spectrum
- Arbitration lies at one end of the spectrum as it is the most formal of all the non-curial processes.
- Arbitration is governed by a statutory framework that relies on adjudication by the arbitrator.
- The arbitrator hand down an award at the end of the proceedings.
- Cannot be classes as consensual.
arbitration and intervention
- Arbitration is the most interventionist of all non-curial methods because
○ Arbitrators are empowered by the statute and can therefore conduct their proceedings in any way they see fit so long as it complies with statute.
○ Arbitrators can also gather information in relation to any matter in such that they see fit. Provided this will facilitate the fair and final resolution of commercial disputes without delay or expense.
conciliation and arbitration act 1904
- Objects of the Conciliation and Arbitration Act 1904,
○ Promote goodwill in industry.
○ Preventing and setting industrial disputes.
○ Provide means for preventing and settling industrial disputes
○ Encourage the organisation
○ Encourage democratic control of organisations.
- When international parties are involved in a dispute, they have choices when it comes to the rules to arbitrate under.
- An arbitrator is not prevented from seeking an expert opinion.
- Arbitrators are to keep the rules and procedures simple so as not to allow arbitration to become long-winded and therefore expensive.
- An arbitral tribunal determines the admissibility of evidence in disputes.
- Arbitrators can only exercise the powers granted to them under the arbitration agreement.
- An arbitrator may only delegate powers when authorised to do so.
- An arbitrator cannot substitute the opinions of others for their own opinion, however, are not prevented from seeking an expert opinion.
- Parties have a duty to allow cross-examination of witnesses unless they agree otherwise.
- Arbitrators have power to act as mediators, conciliators or other non-arbitral intermediary.
appeal of arbitration awards
- Parties may only appeal an award on a point of law.
- Grounds for challenging an award can be substantive and/or procedural.
- Conciliators have varying roles including, (David Bryson, 1997).
○ Settlement of disputes as expeditiously as possible.
○ Administrative review of decisions.
○ Identification of systematic issues giving rise to disputes.
○ Facilitation of agreements
○ Power to issue recommendations
○ Power to give directions
○ Assessment of parties' genuine attempts to conciliate.