The Institute is a leader in Australia in the field of arbitration and alternative forms of dispute resolution (ADR).

Commerce generally is also turning to the Institute to develop cost-effective means of dispute resolution as an alternative to litigation and there is also growth in the number of court-ordered arbitrations.

The Institute is also available to advise on the drafting of appropriate dispute resolution clauses, to be inserted into commercial contracts, to prescribe the procedure to be followed in the event of a dispute arising under the contract.

For an arbitration to take place, the disputing parties must agree to refer their dispute to arbitration. In practice, this agreement is often made before the dispute arises and is included as a clause in their commercial contract. In signing a contract with an arbitration clause, the parties are agreeing that their dispute will not be heard by a court but by a private individual or a panel of several private individuals.

Arbitration is a legal process which results in an award being issued by the arbitrator or arbitrators. Arbitration awards are final and binding on the parties and can only be challenged in very exceptional circumstances. An award has a status very like a court judgment and is enforceable in a similar manner. Arbitration awards made in Australia are enforceable through the courts of most of the world's trading nations.

To access the Arbitration Rules of the Chartered Institute of Arbitrators (Australia) Limited click here.

Conciliation and Mediation are often terms used to describe a process of assisted negotiation. Both involve the appointment of a independent, neutral third person to assist parties in dispute to reach a settlement of their differences. The neutral person is not given any authoritative power to impose a settlement. They therefore have to work with the information disclosed to direct the parties energies towards a future settlement rather than a focus on past conflicts.

In mediation, the mediator will meet or caucus separately with each party to establish hidden agendas and test settlement options. This process is confidential and its function is to try to overcome any impasse and encourage the parties to reach an amicable settlement. In commercial disputes an impasse most often arises from either a lack of trust in the integrity of the other party, or a genuine good faith difference of opinion on the facts underlying the dispute, or on the probable outcome of the case were it to go to court. By acting as a go-between for the parties, the mediator is able to filter out the unnecessary and assist the parties to focus on common goals.

Conciliators adopt the same general approach except that they, usually because of legislation limitations on their role, will not have separate, private meetings with parties. Instead the conciliator will use a joint meeting to work through all the issues disclosed and encourage the parties to reach an agreement themselves, as opposed to having it imposed upon them in arbitration or a court.

Mediation has proven an outstandingly successful management tool for resolving difficult disputes and should always be considered when negotiations fail before proceeding to arbitration or litigation. It is a means by which the parties can re-learn the basis of communication and re-establish relationships with the other party that can provide a basis for resolving future disputes.