This document discusses commercial dispute resolution and the skills needed for a broadly skilled dispute resolution practitioner. It begins by contrasting commercial disputes with other types of disputes like personal or family matters. Key aspects of commercial disputes are legal entitlements, continuing business relationships, and cost significance. The document then outlines a continuum of dispute resolution processes from self-negotiation to litigation. It discusses how a practitioner should have skills from different processes like listening and persuasion from mediation or procedural efficiency from arbitration. The ultimate dispute resolution toolkit requires understanding various procedures, personality influences, and applying rules of evidence fairly while maintaining impartiality.

1. Breaking down silos in DR
The DR professional’s Tool Kit
Ian H Bailey SC

2. COMMERCIAL Dispute Resolution
Contrast with disputes involving:
– Personal relationships
– Family Mediation
– Industry schemes
– Community Justice
– Corporate and internal procedures

3. COMMERCIAL Dispute Resolution
Distinguishing Aspects:
– Legal entitlement focus
– Continuing relationships
– Personality issues of less significance
– Significance of Costs
– Reputational issues

4. COMMERCIAL Dispute Resolution
Distinguishing Aspects:
– Rights v Interests
– The role of legal advisors
– The degree of certainty as to the Law
– Range of alternative processes
– Non-binding evaluative possibilities

5. COMMERCIAL Dispute Resolution
The DR continuum
– Self negotiation
– Facilitation DAPs
– Mediation – facilitative
– Mediation – blended
– Mediation – evaluative
Conciliation

6. COMMERCIAL Dispute Resolution
The DR continuum
– Adjudication
– Med – Arb
– Expert Determination
– Arbitration
– Litigation
– War

7. COMMERCIAL Dispute Resolution
A potential overlap
Section 27D (8) of the Commercial Arbitration Act (2010):
• In this section, a reference to a mediator includes a reference to a
conciliator or other non-arbitral intermediary between parties.
– Who or what is a non-arbitral intermediary?
– A broadly skilled Dispute Resolution Practitioner?

8. COMMERCIAL Dispute Resolution
The Broadly Skilled DR Practitioner
• More than a mediator?
• More than an arbitrator?
• How much of an expert ?
• What knowledge & experience do they have?
• How wide should that experience be?
• What are the necessary attributes or skills?

9. COMMERCIAL Dispute Resolution
Some Editorial Propositions
• (2015) 31 BCL 133
• Which dispute resolution?
• Unsuccessful mediations and like alternatives are, sadly, increasing.
• Similarly, albeit not to the same extent, dissatisfied parties in
concluded mediations are on the increase.
• Has the construction community turned its back too much against
the more certain and conclusive advantages of good arbitrators and
the courts?
• Horses for courses? Should there be more recourse to the wisdom
of elders in the relevant subject matter and the issues in dispute,
rather than trained process facilitators?

10. COMMERCIAL Dispute Resolution
Some Editorial Propositions
• (2015) 31 BCL 207
• Truth, tricks or tactics?
• What is truth? Is it more than the facts? Is it still true in today's
culture to say that the best engine for its discovery is cross-
examination or does the inquisitorial tribunal do better?
• If not, is the actively inquiring tribunal a balanced solution?
• Although tricks heighten emphasis, are they always justified?
• Does the end always justify the means if they help bring out the
truth?
• Fortunately there are rules about tricks and even some tactics in
most dispute resolution, but are they sufficiently known, let alone
obeyed, by those participating?

11. COMMERCIAL Dispute Resolution
What Skills and From Which Process
Dispute Avoidance Procedures
• Early resolution
• Benefits for commercial relationships
• Finality
• Significant economic benefits
• Partly self resolution by parties

12. COMMERCIAL Dispute Resolution
What Skills and From Which Process
Mediation
• Listening ability
• Soft persuasion
• Skilled reframing of issues
• Absolute neutrality
• Self determination by parties

13. COMMERCIAL Dispute Resolution
What Skills and From Which Process
Arbitration
• Procedural Efficiency
• Potential for time and cost benefits
• Finality
• Confidentiality
• Expertise of tribunal

14. COMMERCIAL Dispute Resolution
What Skills and From Which Process
Adjudication
• Speed
• Determinations provide a basis for negotiation
• Frequency of acceptance of outcome
• Confidentiality
• Expertise of tribunal

15. COMMERCIAL Dispute Resolution
What Skills and From Which Process
Litigation
• Ultimate certainty
• Confidence in reliability of process
• Case management
• Control of evidence
• Focus on real issues in preparation

16. COMMERCIAL Dispute Resolution
The Ultimate Dispute Resolution Tool Kit
Procedural aspects
• Broad understanding of possible procedures
• Capacity to advise as to which process to adopt
• Ability to move to different procedures when appropriate
including the possible engagement of other DR professionals
• Understanding of jurisdictional limitations

17. COMMERCIAL Dispute Resolution
The Ultimate Dispute Resolution Tool Kit
Skills
• Understanding of personality influences
• Appreciation of commercial interests
• Capacity to control or manage the process
• Clear and courteous communication
• Precision in written decisions & directions

18. COMMERCIAL Dispute Resolution
The Ultimate Dispute Resolution Tool Kit
Skills
• Appreciation of the need for proportionality
• Understanding of professional responsibility
• Correct application of the law
• Capacity to identify and focus on real issues
• Application of the rules of evidence & fairness

19. COMMERCIAL Dispute Resolution
The Ultimate Dispute Resolution Tool Kit
Skills
• The recognition and resolution of all issues
• Appreciation of procedural fairness
• Clear appreciation of personal preconceptions
• Maintenance of impartiality & independence
• Economic and timely delivery of service

20. COMMERCIAL Dispute Resolution
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