New Judicial Appointment – Supreme Court Embraced Alternative Dispute Resolution

The Victorian State Government appointed Jennifer Davies SC as a Supreme Court judge on 31 March 2009. It is understood that the appointment was made for the purpose of providing the Supreme Court with sufficient resources to appoint dedicated Alternative Dispute Resolution (“ADR”) judges.

The benefits of ADR have been promoted in recent times, with evidence suggesting that ADR processes often benefit parties to a dispute by allowing the parties greater involvement in the outcome of their dispute, expediting the dispute resolution process, maximising efficiency and minimising costs.

Whilst the courts are yet to decide upon the most appropriate form of ADR, the process or processes most likely to be employed may include any combination or hybrid of the following:

Negotiation

Negotiation simply involves a discussion between disputing parties, their agents or solicitors, with a view to resolving a dispute. This process does not ordinarily require the involvement of an impartial third party, and is therefore the most informal of each process. Notably, negotiation outcomes are not legally binding. In order to bind each party to an outcome, terms of settlement must be executed.

Mediation

Arguably the most common form of ADR, mediation involves a process in which an impartial mediator facilitates communication between disputing parties and seeks to resolve the dispute accordingly.

Arbitration

Unlike Mediation, arbitration is an adversarial process in which an impartial arbitrator hears evidence from each party and makes a binding decision. The arbitration process is often likened to ordinary litigation, with the main distinctions being that if affords a greater degree of flexibility and informality.

The appointment of Justice Jennifer Davies clearly signals a shift by the courts of higher jurisdiction toward ADR processes which promote expediency and efficiency in the justice system.

MST supports and applauds the Supreme Court’s proposed inclusion of ADR processes and will continue to promote the benefits of ADR to existing and potential clients as a commercially viable alternative to litigation.

If you would like to learn more about ADR, or discuss possible dispute resolution solutions, please contact an experienced member of the MST Commercial Litigation Division for further advice.

Author: Jack Casonato