Mark Brennan
Director of Liquor Licensing
The Return on Investment in Professional Dispute Resolution
Thursday 2 June 2011
Chief Justice Brennan, High Court
‘But the question (of the meaning of “false”) is not to be
answered simply as a matter of etymology.
The juxtaposition of "false or wilfully misleading" and the
absence of any qualifying adjective for the former is a strong
argument for the proposition that false means no more than
erroneous in fact’
Outcome of litigation: one winner, one loser plus all lawyers
winners
Whacka Brennan case
‘If you have a dispute, the first thing you do is hit ‘em, then you
start asking questions’
(Whacka Brennan, a carpenter from Bendigo, Victoria)
Outcome of Whacka’s approach: two losers
Alternative Dispute Resolution
An umbrella term for processes, other than judicial
determination, in which an impartial person assists disputants
to resolve issues between them
 Mediation
 Conciliation
 Arbitration
 Facilitation
Outcome of alternative dispute resolution: two winners
Alternative Dispute Resolution
MEDIATION
A process in which the parties, with the assistance of a dispute
resolution practitioner (the mediator), identify the disputed
issues, develop options, consider alternatives and endeavour to
reach an agreement.
The mediator has no advisory or determinative role in regard to
the content of the dispute or the outcome of its resolution, but
may advise on or determine the process of mediation whereby
resolution is attempted.
Alternative Dispute Resolution
CONCILIATION
A process in which the parties, with the assistance of a dispute resolution
practitioner (the conciliator), identify the issues in dispute, develop
options, consider alternatives and endeavour to reach agreement.
The conciliator may have an advisory role on the content of the dispute or
the outcome of its resolution, but not a determinative role.
The conciliator may advise on or determine the process of conciliation
whereby resolution is attempted, and may make suggestions for terms of
settlement, give expert advice on likely settlement terms, and may actively
encourage the participants to reach agreement.
Alternative Dispute Resolution
ARBITRATION
A process in which the parties to dispute present arguments
and evidence to a dispute resolution practitioner (the
arbitrator) who makes a determination.
Alternative Dispute Resolution
FACILITATION
A process in which the parties (usually a group), with the assistance of a
dispute resolution practitioner (the facilitator), identify problems to be
solved, tasks to be accomplished or disputed issues to be resolved.
Facilitation may then conclude, or it may continue to assist the parties to
develop options, consider alternatives and endeavour to reach an
agreement.
The facilitator has no advisory or determinative role on the content of the
matters discussed nor the outcome of the process, but may advise on or
determine the process of facilitation.
War stories
Builder’s Insurance case
62 year-old builder against blue chip insurance
company

Liquor Licensing case

General store against regional secondary school
Is it worth it?
As Small Business Commissioner:
- Over 7,000 disputes worth in excess $300m
- Resolved on average within 8-10 weeks at a cost of
$190 per party
Disputes completed through mediation
Total completed disputes, 2002-03 to 2009-10
20.7%
79.3%
Successful mediation
Source: Victorian Small Business Commission
Unsuccessful mediation
Is it worth it?
As Director of Liquor Licensing:
- Inherited 85 contested matters filed at VCAT and resolved
81 of them by quasi-mediation
- Parties can get on with business free from the emotional
stress and expense of protracted litigation
- Courts and tribunals are freed up to hear other matters
ADR success factors
- The legislative or constituting framework: independent of
court or tribunal supervision
- Administrative processes: cooperative and consultative
- Credibility of the office
- Quality of mediators
- Selecting the right mediator
- Get the right decision-makers to attend
ADR success factors cont.
- Commercially realistic outcome
- Low cost
- Speedy
- Facilitated meetings
- Confidentiality
- Improve business conduct
Avoiding disputes
The seven characteristics of successful business relationships
1. Alignment
2. Commitment
3. Mutual interests
4. Communication
5. Accountability and responsibility
6. Professional conduct
7. Pre-agreed dispute resolution
Source: ‘Forming and Maintaining Winning Business Relationships’, Office of the Small Business Commissioner, 2007
Etymology:
1. the study of historical linguistic change, especially
as applied to individual words.
2. an account of the history of a particular word.
3. the derivation of a word.
Source: Macquarie Concise Dictionary (3rd Edition).
Questions