Arbitration

Arbitration is the Alternative Dispute Resolution method that is most like the litigation process.
In the arbitration process, each party makes an argument as to the merits of their “case” to an
independent third party (arbitrator) and then the arbitrator decides the outcome for both parties.
The arbitrator is given a power to bind the parties with their decision.

At Progressive Legal, we are experienced in the practice of arbitration, particularly in areas

where a binding decision is required both efficiently and made by a party with experience and
knowledge in the particular area of the dispute. We would advise that arbitration is best used by
parties who wish to have a process that most reflects the court proceedings however wish to have
a more cost efficient and timely resolution process.

The Arbitrator in a dispute is required as being an independent, impartial but knowledgeable

neutral. An arbitrator is usually an expert in the field that the dispute is in regards to; for
example, if the dispute was regarding a construction contract then the arbitrator would be
someone who was specifically trained or experienced in the construction industry. The arbitrator
has the power to call for evidence from professionals in the industry as well as from the parties
involved before they make a decision on the matter.

Advantages of Arbitration

 Speed: Arbitration is generally much quicker than going through litigation. There is no
formal discovery process and the parties do not have go through the backlogged court
system to achieve a binding decision.
 Cost: The cost of arbitration is entirely dependent on the length of time that the
arbitration lasts, however it is generally a cheaper option that litigation.
 Privacy: The arbitration agreement that is generally entered into at the beginning of the
process usually states that the proceedings will be governed by the rules of privacy and
confidentiality.
 Legal Representation: An arbitration usually involved both parties being accompanied by
their legal representation which ensures that the parties legal rights are protected and each
party is able to ensure that they are putting forward the best case possible to the
arbitrator.
 Expert determination: Arbitrators are usually specialists in the field of the dispute
therefore they are able to make a decision on an area which they have particular
expertise.
 No Rules of Evidence: Although there are some limits as to what can be used as evidence
in the proceedings, the formalised court evidence rules do not apply to arbitration which
may allow parties to introduce evidence beneficial to their case that could not be used if
they proceeded through the court system.

Disadvantages of Arbitration
  Cost: It would be erroneous to state that arbitration is a inexpensive dispute resolution
process. Although it is often less expensive than litigation, the costs can still be extensive
as the parties need to pay for both their own legal representation and the arbitrator.
 Binding Agreement: If the parties do not agree with the decision made by the arbitrator
there is very little that the parties can do to change the decision that has been made. As an
arbitrator’s decision is legally enforceable, it is extremely difficult to appeal a decision
once it has been handed down. This increases the chance of the parties being dissatisfied
with the decision that has been made from the process.
 Rights-based/inflexible remedies: As the arbitrator makes a binding decision based upon
legal rights, the ‘creative’ solutions available in other forms of alternative dispute
resolution are not available, removing the likelihood of a mutually beneficial outcome
 Formal: The arbitration is carried on with the most similarity to a courtroom proceedings
therefore can be quite intimidating to parties who wish to engage in dispute resolution
processes that are less confronting than litigation.
 Impartiality: If an arbitrator has undisclosed interests in a matter, it can play a huge
disadvantage to one or more of the parties in the outcome that is handed down.  

Conciliation
Conciliation is an Alternative Dispute Resolution Process involving the resolution of disputes
that involves negotiations between parties, assisted by a conciliator who is an independent
‘unbiased’ third party. Much like mediation, conciliation aims for mutual agreement rather than a
decision in favour of one side.

Unlike mediation, arbitration and negotiation, in conciliation the parties to a dispute are rarely
involved in face to face discussions. Once the parties agree to utilise a conciliator, the parties
generally meet with the conciliator separately in an attempt to resolve the differences between
the parties.  

The conciliator aims to lower tensions between the parties by improving communication,
interpreting issues in dispute and exploring solutions to reach a settlement which both parties
would be agreeable too. In this regard, the conciliator is not only a facilitator of the process, like
a mediator, it takes on the further role of being an advisor to the parties in the dispute. This
means that the conciliator can make advisory comments regarding the legal nature of the dispute
throughout the proceedings to the parties. The conciliator has no power to make a binding
decision on the parties. However, if the parties in a dispute come to an agreement, they often
have a contract drawn up by the parties solicitors or the conciliator in order to make the
agreement binding.

Progressive Legal is experienced in conciliation and is dedicated to preparing our clients to get
the best out of their conciliation process. We particularly recommend this process to clients who
wish to maintain a positive relationship with the other party. To find out whether Conciliation is
right for you, please see the advantages and disadvantages of Conciliation which we have
compiled below for our clients’ reference:

Advantages of Conciliation:

 Informality: The informal nature of conciliation is one of the processes biggest advantages. The
process is considered the most relaxed and least adhering to the typical adversarial method of
dispute resolution.
 Non face to face aspect: Enables parties to engage in a dispute resolution process which does
not require the parties to come face to face. This is particularly beneficial when the parties have
a particularly disharmonious or acrimonious relationship.
 Cost: As with most alternative dispute resolution processes, Conciliation is generally a cheaper
option than litigation.
 Privacy/Confidentiality: At the beginning of a conciliation, parties generally enter into an
agreement as with the majority of alternative dispute resolution processes, that ensures that
the parties negotiations are conducted as confidential and private.
 Time: Conciliation is more efficient than going through a court process and often can be resolved
within a week from the beginning of the process. This can vary however, depending on the
complexity of the matter and the nature of the parties involved.
 Agreement: As with the mediation process, conciliation requires the parties to come to a mutual
agreement for the process to be successful. The benefit of this is that the parties are more likely
to walk away from the process satisfied with the decision that they have been involved in
making than one which was handed down by an arbitrator or magistrate.
 No Binding Agreement: If the parties are unhappy with the way in which the conciliation is being
carried out they can leave the process with no obligations other than to pay the costs already
incurred from the process.
 Conciliator Involvement: The involvement of the mediator can be positive as a conciliator, whilst
acting as an impartial third party can provide clarity on issues which are in dispute between the
parties.   

Disadvantages of Conciliation

 No Binding Decision: If no agreement can be made between the parties, each will be left in the
same position as they started. There is no binding decision handed down which can be
frustrating to parties who have invested time, money and effort into the process.
 Conciliator Involvement: Although the conciliator is meant to be an impartial third party, the
ability for them to involve themselves in the proceedings through their ‘active’ involvement can
question the unbiased nature of the conciliator.

Mediation
Mediation is a process which has become an extremely effective as an alternative dispute
resolution process in Australia over the last decade. Mediation is a self-empowering process that
emphasises the participants’ own responsibility for making decisions in their own lives.

At Progressive Law we wish to assist our clients to be in a position to make the decisions which
will affect their lives.  For this reason, we believe mediation is a very effective method in some
circumstances to enable parties to resolve their own disputes.

The process involves the parties coming together with the assistance of a trained independent
mediator to help them systematically isolate disputed issues in order to develop options; consider
alternatives and reach a consensual settlement that will accommodate both parties’ needs. The
mediation is private and confidential which means that the parties can partake in the process
without the fear of the discussions being reproduced in future court proceedings.

Unlike arbitration, in mediation the mediator is not in a position to make a binding decision on
the parties. The mediators’ role differs in this respect as they are utilised purely for their
specialised skills which enables them to facilitate discussion and assist the parties to work
through the issues in their dispute by acting as a ‘go-between’ for the parties.

Mediators are skilled individuals who are trained in finding ways to identify a solution in
complex situations. It is a crucial element of a mediation that the Mediator remains neutral and
unbiased throughout the negotiation and does not interfere with the parties’ decision making
process. The Mediator is able to assist insofar as suggesting options available to parties however,
cannot go any further in suggesting the best outcome for the parties.

Before each mediation process begins the parties enter into a mediation agreement. This means
that every mediation can be tailored to suit the individual issues and circumstances of the parties.
Parties can agree to whether or not legal representation to be present during the mediation. This
provides parties who are not comfortable to enter into negotiations alone to have the option to
have legal support throughout the mediation. Further, the mediation agreement may stipulate that
the parties have a legally binding contract drawn up between the parties reflecting the terms of
the settlement once an agreement has been reached.

To find out whether Mediation is right for you, please see the advantages and disadvantages of
Mediation which we have compiled below for our clients’ reference:

Advantages of Mediation

 Mutual Agreement: The agreement reached at the end of any mediation must be mutual,
as both parties must agree to the terms of the agreement for them to be effective. This
often means that parties leave the mediation with more positive feelings towards the
outcome than if they had one handed down by the court.
 Continuing Relationship: The mediation process aims at providing a less conflicting
resolution process through a less confrontational method which often enables parties to
leave the mediation with more civil feelings towards each other.
  Cost: In many instances, mediation provides a reduced cost for parties in comparison to
litigation. However, it would be erroneous to suggest that mediation is by any means an
inexpensive option. The median cost of a Mediator is around $2,000.00 per day with
most mediations lasting between two and three days.
 Time: This is one of the most beneficial factors of the mediation process. Whilst
litigation and some alternative dispute resolution processes can take months or even
years, mediation usually only lasts a few days.
 Privacy/ Confidentiality: The mediation agreement with generally stipulate that all
discussions entered into in Mediation are both private and confidential. These discussions
cannot be used in a court proceeding and unlike Litigation, will not be available on the
public record.
  Neutrality: Mediators are required to be neutral individual in the proceedings who have
no individual interest in the mediation. This ensures that the mediator is not biased
towards one party and does not attempt to sway the parties to a particular outcome, thus
ensuring the parties remain in control of the final outcome
 Lack of Legal Representation: Parties interests can be discussed directly without the
intervention of lawyers who could possibly twist the outcome away from what would be
the best interests of the parties.
 Ability to walk away from Mediation: If the parties are unable to come to an agreement
through the mediation process they can ‘walk away’ from the proceedings with no
consequences or binding decision. Parties are then able to engage in other forms of
dispute resolution to resolve their dispute which could include litigation without the
threat of discussions from the mediation being used in the court proceedings. 

Disadvantages of Mediation

 No Resolution Guaranteed: As mediation requires both parties to come to a mutual

agreement, there is a chance that the mediation process will not produce a result and
consequently be a waste of both time and money.
 Reliance on Parties: For a mediation to be successful both parties must be flexible in their
thinking as well as willing to cooperate and compromise with the other party in order to
come to a mutually beneficial resolution. If one party is not willing to concede or budge
on their point of view the process will be ineffectual. If this is the case, the parties would
be best suited to Arbitration.
 Confidentiality of Proceedings: Although this is often an advantage of Mediation, it can
also be a disadvantage as it can allow parties to resolve disputes without the public being
informed. This is particularly pertinent in cases where there may be a large power
difference between the parties which allows large corporations to resolve disputes
without the public being aware of them.
 Lack of Legal representation: The absence of legal representation can lead to parties to
enter into agreements that may not be as beneficial to them as what they could have
achieved had they been conducted with legal representation advising them.  This may
also mean that the legal rights of the parties are not adequately satisfied by the agreement.
 ‘Neutrality’ of Mediator: It is not always the case that the mediator will be entirely
independent or ‘neutral’ from the proceedings. If a mediator is in any way biased in some
 way towards a certain point of view this ca drastically effect the outcome and
successfulness of a mediation.

Why Choose Mediation?

Mediation provides an effective method for dispute resolution where parties wish to maintain a
positive relationship and resolve their dispute in a cost effective and time efficient manner. It is
particularly useful for parties that wish to focus on what is best in the interests of parties rather
than rely on legal rights to achieve an outcome. If parties are particularly strong willed and
unwilling to give on their position mediation would not be an effective method to utilise.
Mediation provides a way for parties to come to a mutual decision that is made in the best
interests of both parties.

Negotiation
Negotiation is the most popular Alternative Dispute Resolution mechanism in legal practice
today. Negotiation expertise is therefore utilised as an important skill in our legal firm’s practice.
We believe that by engaging in Negotiation at all stages of the dispute process, a more effective
outcome can be reached for our clients.

Negotiation is often the first critical step in the process of trying to settle a dispute in an effort to
avoid the prospect of litigation. At Progressive Legal, our professionals are skilled negotiators
and as a result provide our clients with a much better chance to resolve their dispute without
threat of huge expense and expenditure of time and energy. Our developed expertise in
negotiations allows us to assist you reach the best negotiated outcome in your disputes.

Negotiation involves two or more parties engaging in discussions/bargaining with each other
with the intention of reaching an understanding or resolving a dispute that would satisfy the
various interests of the parties involved. Negotiation is a process where each party involved in
negotiating tries to gain an advantage for themselves by the end of the process. Negotiation is
intended to aim at compromise. Typically, each party’s legal representatives are present in the
negotiation to ensure that the best outcome for their client is reached.   

A negotiation can take place over a day or can last over a number of scheduled negotiations
where a schedule of issues is usually agreed upon by both parties to be dealt with. If an
agreement is reached between the parties, it is often the case that this agreement will be put into
a contract by the parties legal representatives and become binding on the parties involved.

To find out whether Negotiation is right for you, please see the advantages and disadvantages of
Negotiation which we have compiled below for our clients’ reference:

Advantages of Negotiation
  Time: Negotiations are usually much more time efficient than taking the litigation route.
Depending on the will of the parties, negotiations can be as short as one day to a week.
 Cost: As negotiations typically only involve each side’s legal representatives and the
parties themselves, the costs are much less than if the parties engage in litigation or an
alternative dispute resolution process such as Collaborative Law or Mediation.
 Legal Representation: Negotiations are usually conducted by both party’s legal
representatives with or without the clients present. This can ensure that the parties legal
rights are effectively upheld. Unlike mediation where parties may be swayed by a more
powerful party, by having both clients represented by lawyers they are placed on a more
equal playing field.
 Binding Agreement: If an agreement is made between the parties, usually the party’s
legal representatives will draw up a contract to bind the parties to the terms that have
been agreed upon in the negotiation. By entering into a legally binding contract, it
ensures that the process is not superfluous and what has been achieved from the
negotiations can become legally enforceable.
 Ability to ‘walk away’: If either party is not happy with the way the negotiation is taking
place they can walk away from the process without any ramifications other than the costs
incurred from their legal expenses. They are then free to try different routes of dispute
resolution such as litigation.

Disadvantages of Negotiation

 Bad Faith Negotiations: There is the potential that a party may pretend that they are
willing to reason to reach a settlement, but have no intention to do so or to concede on
their idea.
 Emotional Interference: The emotions of the parties are particularly relevant to whether
or not a settlement will be achieved. If a legal counsel is set on taking a ‘hard line’
approach the parties will be less likely to reach an agreement. However, if a legal counsel
adopts a ‘soft approach’ the outcome that may be achieved for their client could be much
less beneficial.
 Time: Negotiations do not have any time constraints, therefore if no agreement is reached
in the first negotiation, the process could drag on for months without a binding agreement
being made.
 No Decision Imposed: The negotiation process does not have a third party making a
decision for the parties. If both parties are not willing to concede, no decision will be able
to be made and the negotiations could either drag on for months or the parties will be
forced to go down the litigious route.
 No Independent Third Party: The nature of negotiation involves both parties trying to
come out of the bargaining with the best result for their client. This will often mean that
each party can be blindsided to an outcome which could be beneficial to both parties
which may be easily identifiable to an uninterested, neutral third party such as a mediator.