Disputing parties often find they have much more in common than they think. It is just how they bring it out.
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Mediation
WHAT IS MEDIATION
Mediation is a structured, step‑by‑step process in which an independent and neutral mediator assists the parties to explore their options, identify their interests and needs, and work toward mutually acceptable outcomes—without the time, cost, and stress of court or tribunal proceedings.
At Norland, we practise facilitative mediation, a model that supports participants to bring their interests to the forefront and make their own informed, practical decisions.
Mediation remains confidential at all times, to the extent permitted by law.
DISCLAIMER
As a mediator, it is not my role to provide expert advice. However, my previous professional experience enables me to understand the issues raised and support the parties in navigating them constructively.
About
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Anthony Sidney George Photiadis
B.A. (Griffith), B. Econ (UQ), LLB, Grad Dip PLT, LLM, (QUT) SA Fin., Com. Dec.,CISI
Nationally Accredited Mediator AMDRAS & Family Dispute Resolution Practitioner
Solicitor of the Supreme Court Queensland
Solicitor of the High Court and Federal Courts of Australia
Senior Associate Financial Services Institute of Australasia
I have extensive experience in negotiation, supported by a background in credit management, lending, investments, economics and industrial relations. I also have substantial experience in rental matters from both the lessee and lessor perspectives.
Memberships and Associations
Professional Member Resolution Institute
Member Australian Mediation Association
AMDRAS Accredited Mediator
Member Queensland Law Society
Senior Associate Financial Services Institute of Australia
Secretary The Economic Society of Australia (QLD)
Member Caxton Legal Centre
Member Hellenic Australian Lawyers Association
Member Deans Society BEL Faculty University of Queensland
Member Law Council Australia
Member of the Chartered Institute for Securities & Investment
Short Biography
After several years working in Finance and Economics, I transitioned into Law in 2011 and later into Mediation in 2017. I draw on my background in financial matters, management, and administration to assist people in reaching mutually acceptable outcomes. This is especially true in mediation, where my goal is to help parties resolve their disputes efficiently and in many cases, amicably. When parties are able to move forward positively, it is rewarding for them and for the mediator.
B.A. (Griffith), B. Econ (UQ), LLB, Grad Dip PLT, LLM, (QUT) SA Fin., Com. Dec.,CISI
Nationally Accredited Mediator AMDRAS & Family Dispute Resolution Practitioner
Solicitor of the Supreme Court Queensland
Solicitor of the High Court and Federal Courts of Australia
Senior Associate Financial Services Institute of Australasia
I have extensive experience in negotiation, supported by a background in credit management, lending, investments, economics and industrial relations. I also have substantial experience in rental matters from both the lessee and lessor perspectives.
Memberships and Associations
Professional Member Resolution Institute
Member Australian Mediation Association
AMDRAS Accredited Mediator
Member Queensland Law Society
Senior Associate Financial Services Institute of Australia
Secretary The Economic Society of Australia (QLD)
Member Caxton Legal Centre
Member Hellenic Australian Lawyers Association
Member Deans Society BEL Faculty University of Queensland
Member Law Council Australia
Member of the Chartered Institute for Securities & Investment
Short Biography
After several years working in Finance and Economics, I transitioned into Law in 2011 and later into Mediation in 2017. I draw on my background in financial matters, management, and administration to assist people in reaching mutually acceptable outcomes. This is especially true in mediation, where my goal is to help parties resolve their disputes efficiently and in many cases, amicably. When parties are able to move forward positively, it is rewarding for them and for the mediator.
Pricing Table
AU$250.00
Minor monetary disputes not exceeding AU$5000.00
- Flat rate on sessions not exceeding two hours.
- AU$150.00 per hour thereafter
AU$550.00Hour
Business. Employment or Property
- Calculated on hourly rate up to five hours.
- AU$330.00 per hour thereafter to a maximum session of eight hours.
AU$440.00Hour
Family, including property assets and custody
- Based on hourly rate
- Fees can be discounted based on parties' financial positions
Mission Statement
Norland Mediations will always endeavour to provide its clients with the following:
Strong ethical standards
Experience and professionalism
Neutral and impartial approach
Efficient and outcome‑focused practice
Issue‑specific knowledge and expertise
Cultural awareness and understanding
Fair, transparent and reasonable costs
Features
Dispute resolution in construction law
a. Introduction (i) Purpose As the building and construction industry continues to expand and evolve, contract disputes are becoming more common and complicated. Construction contracts usually involve complex dealings often necessitating lengthy processes, a number of stages, subcontracts and compliance standards. Disputes can occur at any point in construction and may result in discharge of contract, protracted actions and costly remedies. It would be desirable for these disputes to be resolved in the best possible way and for the contract generally to be discharged by completion where practicable, or at least for it to be preserved past that particular dispute, saving time, expenses and business relationships. The industry has pre-empted this by inserting standard dispute resolution clauses in both current ‘Australian standards’ contracts. Initially, contract disputes were settled by litigation in law and equity. Litigation however, is an adversarial process which, if applied inflexibly, may lead to contract termination, is likely to cause non-collaboration in future projects, friction or even hostility. Nowadays we have a number of extra curial options which are intended to achieve a quicker, more amicable outcome. It is then essential to look at the strengths, weaknesses and overall effectiveness of these options as they relate to one another and the industry as a whole. (ii) Structure Originally, contractual disputes that could not be resolved by the parties themselves would be litigated in court. At some obscure point in history, adversaries would seek advice from a respected person or persons to resolve the dispute. This process eventually developed into what is known as ‘commercial arbitration’. In more recent times binding expert determination and mediation in various guises also developed. In this paper, I will commence by defining the particular methods, describing the nature and characteristics of each of these methods, any applicable legislation, procedures or other criteria, the advantages and disadvantages of each method and attempt to conclude what and how they can best contribute to resolving a construction dispute. (iii) Analysis If any single one of the above options were vastly superior, it would dominate the processes and be reflected in public policy. And although both state and federal governments are encouraging ADR this has not as yet occurred to the degree predicted by proponents. It would seem to suggest then, that each of the above offer different options and advantages as well as disadvantages, which are more suitable and favoured in particular situations without being dominant. I will look analytically at practicality, cost, convenience, time constraints, and the extent of the method or mechanisms required for particular disputes and why some methods are more suitable or attractive than others in different situations. b. Rationale When parties contract, they intend to conduct business as agreed in the terms of the contract, reasonably anticipating that termination of the contract will be through completion, to the satisfaction of the parties. And generally, in all but very few instances the parties intend to comply fully with the terms of the contract to avoid disputes and added costs. In reality however contracts can be discharged not only by completion, but also by agreement, performance, termination, repudiation and even frustration. While frustration is beyond the control of the contracting parties with neither being at fault, it can be terminal and costly to all parties and may require radically different approaches [and negotiations] in order to preserve a contract. A number of Australian jurisdictions have enacted frustrated contracts legislation , primarily however focused on assessing damages, in response to an earlier case, where it was impossible to preserve or even rewrite a contract. On most other occasions, the result of termination is that the innocent party will seek damages. That party has the evidentiary onus of proof. And damages can be sought as a result of repudiation, innocent, negligent, or fraudulent misrepresentation, breach of an essential term or a series of breaches of non-essential terms or warranties, even mistakes be they common, mutual or unilateral regarding the facts in a contract. All of the above which entitle a party to damages or rectification of the contract by the court, are subject to appeal, delay and cost. It then becomes more attractive for parties to include some form of negotiation, as part of their contract, usually arbitration, rather than rely on expensive court decisions, equitable remedies and protracted action. This applies equally to termination as it does to preservation of the contract. Furthermore, if a party requests the court to refer the parties to arbitration, the court will facilitate this, unless it finds arbitration to be inoperable or unsuitable provided it is done no later than the parties’ first statement on the substance. This is a recent development which conforms with Model Law. Model Law refers to UNCITRAL Model Law on International Commercial Arbitration (As adopted by the United Nations Commission on International Trade Law on 21 June 1985, and as amended on 7 July 2006) is incorporated in the International Arbitration Act 1974 (Cth) and deals mainly with international arbitration, although some elements have been either explicitly or implicitly adopted by domestic law in domestic cases. I will not be examining it further in this paper. c. Discussion (i) Litigation Legal dictionaries define litigation as ‘the conduct of legal proceedings by parties before a court’, or according to Sir Frederick Pollock ‘litigation is a game in which the court is umpire’. A further implication is that there are spectators. It is public. Court (civil) procedures and rules are beyond the scope of this paper and are at a very minimum notionally understood by those seeking to litigate and fall clearly within the skills of their legal representatives. It would then be sufficient to highlight the practical implications of legal proceedings. These include formality, guidelines, judicial decisions, adherence to precedents, best evidence, and compliance with relative legislation. Judges have to consider precedents affirm or distinguish those precedents and almost always give detailed written reasons for their rulings and the decision. Despite of the court being a daunting place for lay people, these procedures provide certainty, familiar surrounds for most legal teams and the parties do not have to sit in such a way as to face each other directly. Court procedure however, may invariably require substantial and costly legal representation. It further means that cases are scheduled for hearing as and when permitted, take quite a long time to be scheduled, can be adjourned, parties are allowed the general right of appeal and can in fact progress this as far as the High Court, further adding to financial and time costs. Apart from extra costs and time these matters tend to create uncertainty and it is axiomatic that business in general and construction in particular dislikes uncertainty. Some writers have referred to large commercial litigation as ‘demon litigation’ because of its potential disastrous financial consequences. Nevertheless, the appeal process can by its very nature provide for accuracy as the appellant courts are tasked to look for inconsistencies and errors in both law and fact. Decisions are public and as such can be scrutinised for fairness, but also reported and commented on by both legal sources and popular media, leading to sensitive information becoming public. The latter can often be subjective and at times lead to adverse interpretations. It can also affect an entity’s reputation and other commercial and economic indicia. On the other hand, litigation is the oldest form of resolution, it is consistent, open and transparent and has a long history of legislation, common law precedents and judicial reasoning. Judges have the power to compel parties to comply, can make interim orders stay proceedings and order compliance with dispute resolution procedures as specified in the contract. In other words, the court can utilise all the powers available to it, frequently for the mutual benefit of the parties. In the Australian context this includes referring the parties to specialists who can manage the issues on an ongoing basis. This further reflects the prevailing view, both in Australia and internationally to preserve commercial contracts. (ii) Arbitration Arbitration is best defined as ‘[a] system for final determination of disputes in a judicial manner, by a private tribunal constituted for the purpose, by the agreement of the disputants’. In Queensland commercial arbitration is governed by the Commercial Arbitration Act 2013 (Qld) a Commonwealth Act adopted Australia wide . On international contracts the International Arbitration Act 1974 (Cth) which incorporates the UNCITRAL Model Law applies. Because of its longevity and historicity arbitration is a trusted process ‘intended to provide fair and final resolution to commercial disputes by impartial tribunals without unnecessary delay or expense’. Arbitration is a private process which resembles a trial, in other words it is a judicial process. It is subject to legislation, but with less rigidity than litigation. It can take evidence including both oral and written submissions, examination and re-examination of witnesses as well as cross-examination of the other party’s witnesses. The arbitrator may even ask the courts for assistance in taking evidence. It is subject to procedural fairness. All of the above issues are covered in Part 5 of the Act. One significant difference from litigation is that although the arbitrator(s) may consider precedent and legislation they do not have to make their reasons for the decision detailed or public. The Act is also silent on how the arbitrator(s) chose to deal on questions where law and justice conflict (i.e. technicality) as the tribunal tends to make an award by viewing the conflict in accordance to the contract and principles which it considers applicable. The parties can, if they wish, determine the number of arbitrators, otherwise it is to be one. ’By their very participation [parties] promise to abide by the arbitrators’ decision. The parties further understand that commercial arbitration is a confidential process, where they need to only disclose confidential information if consented by all, or it involves further legal processes’. Provided an arbitration agreement in specified form (see above) is struck, there is only limited scope for setting aside an award granted in arbitration. One such example is if the composition of the tribunal or procedure did not accord with the Act. And although there are grounds for appeal against an award, again these are limited. Arbitrator’s decision cannot be appealed where the appellant sought relief for their own bad choices. Matters that can be appealed however include ‘obviously wrong’ decisions. We need to ask what qualifications does an arbitrator need, in order to make the important judicial decisions he or she needs to make. There are fundamentally three grades of arbitrators, with the lowest being a Grade 3 who conduct low level arbitrations to Grade 1 who would normally handle large construction disputes. The requirements for higher than Grade 3 consist among others the ability to know the law, understand contracts and the ability to make decisions. They need to have experience, undertake pupillage and be assessed by their peers. Additionally, they need to be assessed and their grading is reviewable. In other words as their role is quasi-judicial at the very least and their awards are binding they need to be well trained competent and effectively assisted by legislation to carry out their duties efficiently. In summary, arbitration is a less formal, judicial process presided over by competent, trusted individuals. It can be for the most part a quicker process, where the parties can choose the arbitrator(s) and schedule the sessions. It is private and awards are binding, it is confidential as there are no public records of the proceedings. It has been said in criticism that it can resemble litigation and thus become slower and cumbersome. It can be less expensive than litigation but part of that may be attributed to time and costs incurred in appealing a court’s decision. Arbitration has limited avenues for appeal and relies on cooperation from the parties. However, for it to be enacted it is necessary for an ‘arbitration agreement’ to be included in the contract in writing, or for the court to order it if a party requests it prior to replying to a claim. (iii) Binding expert determination Expert determination attained wide acceptance in the early to mid-2000s as a method of settling disputes that was more cost effective and quicker than litigation and arbitration. It can be defined as ‘[a] process by which parties may refer a matter to a third person, who is an expert in the area, for expert opinion, appraisal, valuation or determination to settle a dispute’. As suggested by Robert Hunt it evolved as ‘[t]he users of dispute resolution services have created a demand for an additional adjudicative process called expert determination as an alternative to litigation or arbitration’. Binding expert determination differs from appraisal in that the parties may or may not accept an appraisal unless they have agreed to be bound by the suggested outcomes whereas a binding determination is fundamentally an adjudication which is binding by way of contract. If referred for determination of a dispute, the decision is final and binding, subject to compliance to the question for determination and with public policy’. What is important here is that the dispute is invariably of a technical nature and within the area of expertise of the expert. The expert is somewhat of an arbitrator without the same legislative constraints such as the Commercial Arbitration Acts and the mandatory requirement for procedural fairness and can be similar to an evaluative mediator, in possession of good technical or financial knowledge, as the case may dictate. In other words, the expert can be a planner, engineer, valuer, hydrologist or even a local government compliance expert, as long as the dispute is within their area of expertise. The expert cannot exceed their expertise by delving in other areas. The expert can be selected by the parties. The parties can also set the parameters for the form and substance of the determination. Unless the parties agree otherwise, experts may follow comprehensive rules determined by their professional body usually the Resolution Institute or Australian Commercial Disputes Centre (ACDC). These rules which are quite often incorporated in agreements, unless the parties object to them, include intuitive aspects such as preliminary meetings, confidentiality, speedy resolution of the conflict in writing, for the expert not to act in an arbitral capacity, independence and impartiality and that the parties agree to pay their own costs and be bound by the decision of the expert. The expert can act in an inquisitorial way where they can analyse the issues and problem solve, especially when the dispute is of a specific nature ‘where expert determination is a process to quickly resolve a [technical] dispute without going to the expense of litigation or arbitration’. There is no courtroom procedure or mandated formal evidence presented although parties may submit sworn evidence. Legal arguments and written or oral submissions are allowed. However, assertions and adduced evidence are not tested. The procedure can be agreed between the parties and the expert; nevertheless, the powers of the expert are limited, in that the expert cannot issue subpoenas, request the production of documents or determine interlocutory issues. Unlike arbitration the expert cannot request assistance from the court with regards to evidence. The rights of parties to appeal however are limited and expert determinations are enforceable by the courts. Importantly, an expert determination has to be consistent, comply with public policy and the terms of the contract and the conditions governing the engagement of the expert. If it does so It cannot be appealed, even if it is wrong. So, impugning the expert determination comprises a complex legal process such as challenging the agreement to refer to an expert for binding determination, or highlighting differences between expert determination and arbitration, meaning that the expert has exceeded their jurisdiction. (iv) Mediation Mediation is defined as follows: [as] a process in which the parties to a dispute, with the assistance of a dispute resolution practitioner ( the Mediator) identify the disputed issues, develop options, consider the 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 a resolution is attempted. Mediation may be undertaken voluntarily, under a court order, or subject to an existing contractual agreement. An alternative is ‘a process in which the parties to a dispute, with the assistance of a dispute resolution practitioner (the mediator) negotiate in an endeavour to resolve their dispute”. This means that the mediator has to leave it to the parties to come to an agreement on their own. It is then up to the parties to distinguish between positions and interests. However, mediators can assist in promoting communication between the parties, explore disputed issues and help generate alternatives and have the parties think about different outcomes in the event of not reaching agreement. Mediation is also a private and confidential process as far as the law allows. It requires all mediators’ notes to be destroyed upon conclusion of the process. To that end it is even more private than arbitration and expert determination. It is also a ‘without prejudice’ process, as mediators conduct private sessions with each of the parties. This means that if a statement or proposal is made and not proceeded with cannot be used later as evidence. In other words, the statement made does not affect the legal rights of the party making that statement. The purpose in mediation is to let the parties communicate with each other and the mediator freely. The aim is to highlight mutual or complementary interests rather than positions. There are a number of mediation models but in construction it is mainly the facilitative model that is used, which enables the parties to self-determine. The evaluative model is broadly similar to legal advice as to costs and restitution and will not be covered. The process can tend to assist the parties understand each other’s point of view. It involves communication, mainly between the parties themselves, in that generally they will state and discuss the issues arising in order to uncover interests. These are often followed by private sessions with each of the parties in order to highlight best and worst scenarios. The parties are then encouraged to disclose any other issues to each other and work cooperative towards a solution. There can be issues, in what they may wish to disclose, they may act emotively and against the advice of their legal teams and power imbalances are always at play. Additionally, as the mediator is not in a decision-making position and cannot prevent the parties from reaching unfair and unjust decisions. The mediator cannot bind the parties to a decision, but may conduct subsequent mediation sessions, should the parties agree. Mediation is the newest and most cost-effective form of dispute resolution. It is however not binding, (see above) it actively seeks to address hostilities through shuttle mediation but cannot always prevent power imbalances or impulse decisions by parties even if their legal representatives are present. To that end it cannot afford the parties procedural fairness. Nevertheless, it is incumbent on the mediator to do so by assisting the parties to reach agreement voluntarily, freely and on the basis of informed consent. The mediation should try to manage manipulative tactics, intimidation and create a safe environment for an agreement to be reached, without being too keen to facilitate a ‘bad’ agreement. According to the NMAS standards a mediator should be aware of power imbalances and manage the mediation accordingly and consider the safety and comfort of the participants. The effectiveness of a mediation process is largely dependent on the commitment and preparation of the parties. If parties are not able to agree or if an arrangement fails the parties may opt for further mediation or proceed to litigation, on the understanding that if the court awards a lower amount of compensation this may incur cost consequences. For mediation to work, parties have to be genuinely committed to the process. However, mediation agreements can often break down, parties can withdraw from the mediation process at any stage, be uncooperative, withhold vital information that may have led to a better settlement if disclosed. On occasions the desire to mediate may not be genuine and can be used as a stalling tactic. As with all other processes mediation can lead to an unsatisfactory resolution. As mentioned above, further mediations may be utilised if agreements break down. Mediation is not a ‘once only’ option on a matter. On the other hand, the option is open to the parties to litigate if they are unable to reach a solution. If however, parties wish to proceed to litigation they should be mindful of ‘statute of limitations’ provisions as they apply, should they not act promptly to litigation. d. Conclusions In general, all of the above processes are capable of a good outcome. Their effectiveness however, depends on the properties, size and nature of the dispute. Litigation is a state process, proven as a highly credentialled decision making, given that judges are particularly well trained and practiced. As a rule, they can compel parties to comply with timeframes and have powers of sanction for non-compliance. They can enact interim orders pending final decision. Court procedures are clearly defined in common law legislation and precedents. Equitable remedies are available. Appeal procedures are also clear. Disadvantages in litigation include costs, which cannot always be predetermined, incurred in engaging non in house solicitors, barristers and the courts. Proceedings are also subject to delays either through lack of preparation, abuse of process by the parties. Given the other ‘softer alternatives of dispute resolution, litigation is often the last resort and that tends to invite costly appeals to a higher court. Decisions are public, which may not be desired by either or both parties. Procedural fairness is integral in litigation. Procedural fairness is also a feature of arbitration. In contrast to litigation however, arbitration is a more private, less formal, faster process. Arbitrators are qualified and are able to act in a judicial capacity. The disputing parties can decide on who can arbitrate and the number of arbitrators they may wish to have. The arbitrator’s award is enforceable. However, the parties have to bear the cost of the arbitration, including arbitrators’ fees as well as any venue they may need to utilise for the arbitration to take place. Unlike judges, arbitrators cannot enforce compliance or make interim measures such as orders or injunctions, for which the parties need to apply to the court separately. Appeals are restricted and on some occasions arbitration would tend to resemble litigation processes. Expert determination, which can be either binding or not binding suits technical disputes. It has the advantage of the parties selecting an expert, in a particular field, that both can have confidence on that expert’s ability. Naturally the more reputable the expert the more costly they are likely to be. The parties can also rely in the experts ability to act not only as an adjudicator but also as an investigator and in so doing can contribute constructively. Expert determination differs from arbitration in that it does not involve court procedures. It has guidelines but is not limited by legislation. To that extent it is quicker far less formal and less expensive. If arbitration is analogous to judicial process, expert determination is more akin to the role of a ‘tribunal of fact’ or a jury. However, in binding expert determination there are very few opportunities for the parties to appeal and because evidence is not tested the decision may be based on inaccurate information or a wrong premise. A logical transition from expert determination is facilitative mediation. It is informal and in it is the most private of all dispute resolution processes, as the mediator is obliged to destroy all notes taken during the session. It is intended to be non adversarial and allows parties to come to a mutually acceptable agreement, as the mediator only facilitates the process. It allows flexibility as it focuses on parties interests rather than positions. However, should the parties not agree the next step is invariably litigation. And although the mediator is to maintain the strictest confidence, the parties may volunteer strategic information, which they may wish to keep confidential, to the opposing side. Naturally mediation being a consensual process depends significantly on the parties willingness to reach agreement and the skill of the mediator to facilitate that agreement, by focusing, brutally perhaps, on the alternatives. Mediation should not be simply a step along the road to litigation. As to which of the above methods, is the best is a question of suitability, prevailing trends, or preference, either in regard to the parties or their legal teams. Arbitration had been the only alternative to litigation for a long time with expert determination reaching a peak in the early 2000s whereas the proponents of mediation consider it an ever-growing, viable resolution option. What has to be borne in mind is that as there are limited avenues for appeal in both arbitration and binding expert determination, the parties should be clear and well prepared in the presentation of their case. e. Further observations In general, parties involved in construction disputes are largely corporations, firms or trade professionals. Nevertheless, costly disputes affect profits and reputations adversely, informal appraisal or mediation can and should be used as preventive or mitigating measures. Arbitration and litigation are well established processes and to that end they have become more complex. Binding determination can be susceptible to inaccurate evidentiary information This can be mitigated to an extent by the expert’s inquisitorial powers, nevertheless can lead to binding but wrong and unjust decisions that are not subject to appeal. That aspect would warrant further scrutiny and reform. On the other hand, mediation has the advantage of being open to further action, but that can defeat the intent of a quick amicable solution, in that it can delay the resolution process A skilled mediator should be aware of such tactics. Finally, parties should and mostly are aware of what method best suits their particular dispute. So, while there is a choice of dispute resolution methods available, arbitration and binding expert determination should be considered for inclusion in any contract. Mediation on the other hand can be initiated at any time. Notably, irrespective of all available ADR options including arbitration, the parties and their teams should prepare for them as they would for litigation. The parties should be aware that in civil cases, with very few exceptions such as ‘non est factum’ the parties are to be held to their actions. You can add any feature you want or edit the ones that are already listed.
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MEDIATION and WHAT TO EXPECT FROM MEDIATION
Whilst I mediate there are ethical constraints such as conflict of interest. On those occasions I cannot take on the mediation, but can advise clients as to what to expect and do.
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