Industry Forum for Dispute Resolution

President's speech at 2016, 30th Anniversary Celebration excerpt, Katherine Johnson

The third Dispute Resolution Industry Forum was held on 12 August 2016. Katherine Johnson, the current President of ADRA (Australian Dispute Resolution Association), was given the task of summarising how the Industry Forum developed. To do that, she returned to June 2013 when the focus of ADRA’s attention was on understanding the purpose of its existence and in particular whether its role as a catalyst was still relevant or whether it required a new role. To further this discussion, ADRA decided to host a Past President’s dinner where as many of the Past presidents could set a focus for ADRA’s path into the future. In order to assist with this task, Jeremy Gormly who was then the Head of the National Alternative Dispute Resolution Advisory Council (NADRAC) was invited to guide the possibility that ADRA may assist NADRAC in its research capacity- a task constantly advocated by Micheline Dewdney as being of prime importance.

The Past President’s dinner was successfully held in early November 2013 and moves were made for further consultation to occur between ADRA and NADRAC early in 2014. However by the end of November 2013, NADRAC was very unexpectedly and unceremoniously ‘amalgamated’ into the Attorney General’s department and his since been ‘concluded’. Nonetheless, discussions between Jeremy Gormly and ADRA continued that led to ADRA’s second major initiative during my presidency, which was the development of the Industry Forum for Dispute Resolution (IFDR) Steering Committee.

The aim for the IFDR Steering Committee on this occasion was to see whether a unified voice was possible within the dispute resolution industry in Australia with which to approach Government about its needs and concerns both on a National and on an International basis.

Katherine stated ‘on this occasion’ and ‘in my presidency’ only to highlight the fact that this current Industry Forum was by no means the first attempt ADRA has made for a unified voice in the industry. There were countless hours of programs in the past under the Presidency of John Pollard, Paul Lewis and later under the presidency of Val Sinclair where the ‘Let’s talk’ initiatives took on a life of their own and for various reasons led us to the current initiative we now have named the ‘Industry Forum for Dispute Resolution’ (IFDR). There is no knowing how this Forum will fare; but without trying we will never know.

Briefly then, the idea behind the IFDR was precipitated by the amalgamation of NADRAC which occurred with no consultation of any kind with any DR organisation. ADRA like many other organisations at the time made submissions to Government about the possible negative impact of that amalgamation; but ADRA like the other individual organisations realised that there was no single body that the government could easily have approached in order to have any consultation. In the absence of such a body, any Government could easily assume that the DR industry was still not sufficiently mature to have a ‘consultation group’ with whom to consult. And responding to all of the submissions to government from each individual DR organisation was clearly an inefficient and ineffective way to make decisions.

In early 2014 ADRA consulted with Institute of Arbitrators and Mediators (IAMA), LEADR, Australian International Dispute Centre (AIDC); Australian Commercial Dispute Centre (ACDC) Australian Centre for International Commercial Arbitration (ACICA), Chartered Institute of Arbitrators Australia (CIArb Australia), The Law Council, The NSW Law Society, and the NSW Bar Association to invite a representative from each group to form a steering committee which could consider the possibility of the individual organisations uniting somewhat like a federation to form a unified voice with which to approach Government about its needs and concerns both on a National and on an International basis. Such a union would enable the Government to have a focal point of contact for any future consultation in relation to developing Australia as an International dispute resolution Centre in line with the current international standards that have already been very successfully set in Singapore and in Malaysia.

This is not a new concept as the establishment of the Australian International Dispute Centre (AIDC) in 2010, which became the Australian Dispute Centre (ADC) in 2015, can confirm. The difference is that now the DR Industry can support the need for Australia to become the first port of call for international disputes particularly in the Asia-Pacific region and that funding to do so may be co-operatively supported/sponsored by the DR Industry itself. IFDR notes the level of financial backing from government subsidies enjoyed by Singapore and Malaysia but believes that Australia can deliver a service on par with any in the world due to the expertise of its mediators.

The idea behind forming the IFDR from an international perspective was that Australia should not fall too far behind the already existing very proficient Asian Markets in Dispute resolution. The proficiency of the Asia-Pacific markets was demonstrated, earlier this year, in March, 2016 by the recent Global Pound conference held in Singapore where attempts were made amongst other aims to standardise mediation criteria for international commercial use. The standards set from the Global Pound conference which is still ongoing globally, could well be an attempt to develop rules for International Commercial Mediation much like the UNCITRAL rules have been established for International Commercial Arbitration. Having a unified voice and focal point of contact for the DR Industry in Australia would assist in making Australia more competitive as a venue in the Asian market to resolve disputes and would provide an international perspective to its economic base.

On a national Level, having a unified voice with which to approach government would better test whether the industry is now sufficiently mature enough to become a profession in its own right; rather than remaining a set of very highly prized and effective tools that could be used by any other profession. Questions about whether mediation can be a profession in its own right could be better answered with a focal point for consultation in place such as the IFDR. For example, the more frequent use of dispute resolution and mediation in particular by the various Courts and Tribunals around Australia have currently led to a plethora of differences in what is understood by the very term ‘mediation’. Each organisation has its own interpretation from Family Law where addressing the needs and interests of the parties is paramount, to the Workers’ Compensation Commission where mediation is understood more in rights based entitlements than in interest based needs. Both interpretations have evolved to meet the requirements of the Legislation and the requirements of parties that find themselves enmeshed in them.

The consultations ADRA held individually with the major Dispute Resolution groups in late 2013 as listed above, resulted in those groups agreeing that a meeting of the DR Industry organisations should be held. The groups agreed that they should form an interim steering committee with Jeremy Gormly the former head of NADRAC, participating in that interim committee. The aim was to consult with as many other National DR membership organisations that was logistically feasible; and offer them the opportunity to consider whether the DR industry was now sufficiently mature to form such a ‘consultative group’ as a unified voice with which to address their needs to Government on a National and International scale.

The method chosen by the steering committee was to invite a representative sample of organisations from the 2008 National Mediation Advisory Council (NMAC) conference held in Canberra from which 42 participants accepted the invitation and participated in the first Dispute Resolution Industry Forum held on 14 May 2014 at what was then AIDC premises in 1 Castlereagh Street Sydney. It is not an over exaggeration to say that the day was a resounding success with the participants making it abundantly clear that another similar meeting should be held at the end of 2014. The participants also made it clear that a web presence for such a unified voice would be required. The steering committee therefore accepted the task to follow through with that request.

Given that the National Mediation Conference was to be held in Melbourne in September 2014 the steering committee was mindful that holding another Industry Forum towards the end of 2014 would be very difficult. Hence after several considerations, the steering committee decided that the best way forward to capture the good will and enthusiasm of the previous 2014 Forum Day was to have a follow-up anniversary celebration inviting the same participants as in 2014 for the 2015 conference which was again held on 14 May at Ashurst Lawyers. The participants of the 2014 Forum day decided to maintain the membership of the interim steering committee to become the official steering committee and the floor was open for any participant to join the steering committee for 2015.

The 2015 steering committee was very mindful that the participants attending the Forum Days in 2014 and 2015 were a very select group; and there has been much discussion about the way this group was selected. There has also been much discussion about whether the right questions were asked at the first Forum in 2014; and whether the questions put by the Forum participants in 2015 were truly representative of all the DR Industry needs. Keeping these concerns constantly in mind the participants of the 2015 Forum posed questions which were later placed on a linked-in site for discussion between all the participants.

Unfortunately and probably due to the enormous change in the Australian DR landscape in 2014 and 2015 which drew together 600 delegates at the National Mediation Conference in Melbourne when the amalgamation of LEADR and IAMA occurred to become the Resolution Institute (RI), and the further amalgamation of ACDC with AIDC to become the ADC occurred, there was very little time left for an IFDR discussion on the linked-in site. Nonetheless the need for a web-site remained a pressing concern. And, given the enormous changes that followed, time was required to allow the DR Industry landscape to settle prior to holding the third Forum Day which was to occur on 14 May 2016, but was instead held on 12 August 2016.

Being mindful that the Forum attendees tended to be private membership organisations rather than organisations with government funding such as Legal Aid etc. the aim of the 2016 Forum Day was to present a website to the participants that aimed to address the questions:

What actions were needed to provide a line of communication between Government and the DR industry on DR issues?

What could the DR industry entities do to increase the use of DR techniques in the community?

The first Forum concluded its work on 14 May 2014 with, among other things, an invitation to the organizing Steering Group to continue its work to answer the two questions above with a view to further unify the DR Industry.

To that end, the Steering Group set for itself the following Terms of Reference;

  1. The development of contact among all non-government DR Industry entities with a view to enabling those entities to develop and maintain lines of communication with one another on matters relating to;
    1. Effective dispute management in all areas of the Australian community, economy and workplace.
    2. The needs and activity of government in the DR field.
    3. Common interests within the DR industry.
  2. The development and utilization of a line of communication with government in pursuit of greater use of DR in the Australian community, economy and workplace;

In pursuit of Terms of Reference 1 and 2 above, the Steering Group shall;

  • Encourage contact between DR industry entities on matters common to DR industry needs,
  • Arrange a periodic forum of DR industry entities,
  • Alert the industry of matters requiring submission to government encouraging or opposing government decision as needed, whether singly by entities or in concert.
  • Manage a website which provides information to and acts as a means of contact among industry entities on matters relevant to these terms of reference.

The above terms were agreed to and accepted by the members of the IFDR Steering Group of 2014 and 2015.

The program for the IFDR 2016 Forum Day offered each of the organisations, 3-4 minutes to discuss their views about the proposed ‘consultative body’ and whether the enormous changes in the DR landscape since November 2013 has affected their daily functioning. They were given a chance to consider the possibility of formulating some type of unity such as a ‘charter’ like the one sent as an example to participants in 2015; or formulating another type of entity either on-line or otherwise.

A start was made and an opportunity afforded to the DR thinkers to re-consider questions raised from the first and second IFDR Forum Days for the ‘right’ questions to be asked being mindful that the Industry Forum for 2016 aimed to represent not just mediators but also arbitrators, adjudicators and other types of Dispute resolvers.

As stated earlier Such a ‘consultative group’ is much like forming a federation where the needs of the industry much like the needs of the country are met, but where the individual functioning of professional bodies such as the Bar Association and Law Society akin to States stays the same; and the daily functioning of individual organisations akin to local governments continues as it has always done. As stated earlier the future of IFDR depends on the members of the DR Industry; and although the future cannot be predicted the benefits of collaboration in resolving disputes far outweigh the needs of the Industry to compete.