Dispute Resolution (ADR)

Overview

“ADR” stands for Alternative Dispute Resolution

ADR is a collective description for a diverse range of processes designed to resolve disputes.  These processes, particularly mediation, have been widely adopted and accepted throughout Australia since the 1980s.   Many courts now require parties to attempt a mediation of their civil dispute before the matter can proceed to trial.

In ADR, the word “Alternative” means “alternative to the courts”.  I believe this places the emphasis in the wrong place and the many attempts that have been made to redefine the meaning of, or even the word meant by the “A”, simply miss the point.

The most important function of all ADR processes is their practical ability to resolve the actual dispute they have been called into use to resolve.  It is therefore more useful to reduce the expression to “Dispute Resolution” and to openly declare that the primary purpose of Dispute Resolution is to resolve disputes through the application of problem solving processes that are designed to be efficient and effective.

Dispute Resolvers

A Dispute Resolver is a person (or persons) appointed to run and manage a dispute resolution process.  Dispute Resolvers have two distinct responsibilities:

• They are engaged to deliver a specified process, or collection of processes. They must deliver the process the parties have chosen to use.
• They are required to try to resolve the dispute as efficiently and effectively as they can, subject to any constraints imposed by the chosen process.

Where the dispute resolver is appointed to work in a facilitative capacity (ie: in a non-decisional process, such as mediation), the standard wisdom is that they don’t need to be experts in the field of the dispute – rather, they need to be experts at managing the process they have been appointed to.

Having worked for many years across the full range of dispute resolution processes, I don’t agree with the first part of this proposition – at least when technical issues are involved.  In my experience, dispute resolvers manage processes better and are generally more useful to the parties when they understand their language and are familiar with the technical issues involved in the activity in dispute (eg: a medical procedure or an accounting process).

Where the process is evaluative (case appraisal) or decisional (arbitration and expert determination), the dispute resolver is usually chosen for their expertise in the field of the dispute.   Sometimes this requires expertise in the law, when the issues are fundamentally legal ones, at other times it is necessary to chose a doctor, engineer or accountant.

Disputes & Conflicts

Disputes and conflicts arise when two or more parties promote their own positions, needs and/or interests over and against each others’ positions and interests.

A dispute lies in the fact of the opposing positions and interests.

A conflict commences when parties actively promote their opposing positions and interests - to the perceived cost or detriment of the other.

Financial Dispute Resolution

Elsewhere in this website I explain some of the intricacies of Forensic Accounting.  I believe that in litigation lawyers should focus on dealing with legal issues while accounting, financial and some commercial issues should be referred to another type of expert – a forensic accountant.

The same logic applies to dispute resolution, which should be highly focused on achieving process efficiencies.  Therefore, any dispute that revolves around, or is significantly affected by accounting, financial and/or commercial issues should be referred to a Forensic Accountant, whose technical and context knowledge should assist any efforts made to actively manage the case.

I have successfully resolved a large number of commercial disputes as an arbitrator, mediator, conciliator and/or facilitator for around twenty years, in addition to my work as a forensic accountant.

Professional Partnership Disputes

Elsewhere in this website I explain some of the intricacies of dealing with Professional Partnership Disputes from the perspective of the Forensic Accountant.

While I can bring serious rigour into partnership disputes in this role (often providing the sort of persuasive clarification that helps to get parties back round the negotiating table), I am considerably more effective when appointed to actually resolve the dispute - either as an arbitrator, mediator, expert determinator or facilitator.

My Approach

When nominated / appointed to help resolve a financial or partnership dispute, I prefer to be actively involved in deciding the nature, type and timing of the dispute resolution process, particularly when there is some flexibility allowed by the parties’ circumstances.

Before launching into the main dispute resolution process I conduct a Preliminary Planning Meeting where process options can be discussed and agreed, along with information requirements and timetables.

If there is a need to obtain or assess expert reports we will agree an efficient process for so doing.

Once the necessary information is available, I arrange meetings or hearings, as required, to provide opportunities to present arguments, requirements and expectations.

Subject to the process that has been agreed, we will either negotiate or mediate to a conclusion, or provide binding or non-binding determinations. 

Benefits

The fundamental benefit to parties and advisers lies in having access to an experienced accounting and finance expert, who is familiar with partnerships and is also highly qualified in most forms of dispute resolution.   By using me to manage and deliver a focused and efficient process the parties obtain a quality outcome more efficiently and more cost effectively than could be achieved through almost any other approach or facility.