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Arbitration-Mediation Disaster of the flip-flopping Fedora’s

This post is an analysis of the Ku-ring-gai Council v Ichor Constructions Pty Ltd [2018] NSWSC 610 case and the article by Marque Lawyers which starts off with :

Arbitrators can wear many hats. Sometimes they can even pop on a mediator’s hat. But what happens when they swap hats back and forth? Does the fedora mean they’ve started arbitrating again and that we are all okay with that or do they just have bad fashion sense? If only there was a way to be sure…

Just because an arbitrator “can” wear many a fedora, it does not mean the parties to a dispute should entertain such a comedy routine.  To have a person who is arbitrating a dispute and has heard the respective arguments now say to you, instead of me deciding the matter, the Arbitrator comes up with  `How about I pop on my mediator hat then we all break away and talk settlement‘.  To suggest now the parties can figure it out themselves and “talk settlement” while the Arbitrator wannabe Mediator mediates seems farcical.

A recipe for disaster from the outset!  It would appear this case was highly suitable for private mediation and could have been resolved by a professional mediator but instead the genius Arbitrator wannabe Mediator comes up with what he thought was the Mediator of the Year Award-worthy suggestion that the parties just `walk away’, the mediation promptly ended and the arbitration resumed.

What followed was an epic cock-up of not following required procedures of getting written consent of the parties to maintain the comedy routine of rotating fedora’s, each time the fedora changes it required the written consent of the parties.  Ooops the wannabe Arb-Med Mediator forgot to get written consent when he changed his hat back to an Arbitrator after his epic fail as a Mediator and an Arbitrator.

The Court orders the Arbitrator’s decision invalid and now the parties are back to square one, still in an unresolved dispute which could be mediated, but will likely now go back to litigation, “incur further costs and probably be left wondering why immunity from suit was ever granted by legislation to arbitrators.”

The key takeaway (according to Marque Lawyers) is that the case was an example of exactly what not to do (here we agree).

They go on to say “If parties and arbitrators want to make Arb, Med, Arb as easy as one, two three, it’s as simple as… following the law to the T.” ~ Here we disagree!  The Comedy routine of changing fedora’s ought not to be entertained,  the parties before litigation ought to take reasonable steps to resolve the dispute and that we suggest is ideally to privately mediate the matter.

Consider this.  If they went through private Mediation the chances of resolving the matter statistically are very high (over 60% in commercial disputes) and moreover their names would not have been dragged through the mud with public Court proceedings that are published and remain there forever as a stain against their names.

Perhaps if you are involved in a dispute, you might want to consider contacting us first for a free consultation whether Mediation could help you.


Source : Marque Lawyers

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