Conferences

Summary

The Commercial ADR & Litigation Avoidance conference, 15th – 17th June 2009 will address issues which extensive research across industries have revealed to be key, including communicating the ADR model throughout your organisation; managing and developing your commercial relationships to ensure litigation does not become an option; determining which mode or modes of dispute resolution would be most appropriate to your situation; and designing fair dispute resolution procedures in the workplace.

Hear from leading ADR specialists including:

• The Honourable Sir Laurence Street, AC, KCMG, QC,
  Commercial Mediator, Former Chief Justice of the Supreme Court of NSW
• Nicholas Wilson, Workplace Ombudsman, Workplace Ombudsman
• Alan Limbury, Chartered Arbitrator, Specialist Accredited Mediator and Managing Director, Strategic Resolution
• Philip Argy, Principal and Chief Executive, ArgyStar.com; Chairman, eCommerce Committee, Law Council of Australia
• Ian Govey, Deputy Secretary, Civil Justice and Legal Services, Australian Government Attorney-General’s Department and Council Member, National Alternative Dispute Resolution Advisory Council
• Mary Walker, Chair, Alternative Dispute Resolution Committee, The Law Council of Australia
• Alain Mignot, Co-Founder and Executive Director, Alliancing Association of Australasia
• Brian Seidler, Executive Director, Master Builders Association

Contact Tonkin Corporation at australis@TonkinCorporation.com or telephone 02 9224 6000 for more details on the conference.

ENDORSED BY:

Alliancing Association of Australasia

Australian Centre for International Commercial Arbitration

Australian Commercial Disputes Centre

Australian Dispute Resolution Association

Australian Institute of Project Management

Chartered Institute of Arbitrators (Australia)

Commercial Law Association

Institute of Arbitrators and Mediators Australia

Law Council of Australia

Master Builders Association

SUPPORTED BY:

LEADR - Association of Dispute Resolvers
 

Learning Objectives

• Enhancing the role of In-house Counsel in resolving conflict
• Establishing objective yardsticks to objectively judge negotiations against
• Promoting fair, transparent and consistent ADR processes
• Maintaining flexibility with your ADR processes whilst satisfying legislative requirements
• Developing commercial relationships through effective service level agreements
• Planning for, avoiding and resolving cross-border contractual disputes
• Making international arbitration work and constraining costs and time delays
• Best practice commercial mediation
• Exploring early resolution strategies for different class action structures
• Communicating the ADR model throughout your organisation
• Incorporating MedArb clauses into your contracts
• Class action avoidance, early resolution and settlement
• Negotiating and re-negotiating commercial contracts
• Incorporating ADR into major projects

Speakers

• The Honourable Sir Laurence Street, AC, KCMG, QC,
  Commercial Mediator, Former Chief Justice of the Supreme Court of NSW
• Nicholas Wilson, Workplace Ombudsman, Workplace Ombudsman
• Professor Doug Jones AM, President, Australian Centre for International Commercial Arbitration (ACICA); Partner, Clayton Utz
• Mary Rebehy, Conference Registrar, Administrative Appeals Tribunal
• Alan Limbury, Chartered Arbitrator, Specialist Accredited Mediator and Managing Director, Strategic Resolution (Sydney); Chairman, Complaints Panel of the Australian Self-Medication Industry; Director, Chartered Institute of Arbitrators - Australia
• John Emmerig, Partner and National Head of Class Action Practice, Blake Dawson
• Ashley Tsacalos, Partner, Commercial Dispute Resolution, Deacons
• Philip Argy, Principal and Chief Executive, ArgyStar.com
• Antony Robb, Arbitrator, Conciliator, Mediator; Fellow,  Australian Centre for International Commercial Arbitration (ACICA)
• Dr Rosemary Howell, Chairman, Strategic Action
• Alex Baykitch, Partner, Blake Dawson; Vice President, ACICA
• Bianca Keys, Mediation Manager, The Accord Group; Assistant Ombudsman, Produce and Grocery Code
• Rashda Rana, Partner, Holding Redlich; Fellow, ACICA; Chartered Institute of Arbitrators (London and Sydney Branches); Institute of Arbitrators and Mediators Australia (IAMA)
• Malcolm Holmes QC, Immediate Past President, Chartered Institute of Arbitrators
• Robert Hunt, Barrister, Past President, IAMA
• Jonathan Grigg, Distribution Controller, General Mills Australia, and NSW President, Supply Chain and Logistics Association of Australia
• Brendan French, Head of Customer Relations, Commonwealth Bank Group
• David Fairlie, Vice President and Director of Arbitration, ACIA; Partner, Mallesons Stephen Jaques
• Ian Govey, Deputy Secretary, Civil Justice and Legal Services, Australian Government Attorney-General’s Department and Council Member, National Alternative Dispute Resolution Advisory Council
• Mary Walker, Chair, Alternative Dispute Resolution Committee, The Law Council of Australia
• Angela Bowne SC, Barrister, Blackstone Chambers; Chair, NSW Bar Association's Alternative Dispute Resolution Committee
• Lesley Bentley, National Vice President, Australian Institute of Project Management (AIPM); Managing Director, Living Planit
• Anthony Grieve, Vice President, IAMA
• Alain Mignot, Co-Founder and Executive Director, Alliancing Association of Australasia
• Robert Collings, General Counsel, Master Builders Association
• Michael Mills, Director, LEADR; Partner, Freehills

Conference Agenda

DAY ONE:  MONDAY 15th June 2009

8:30 Registration

8:45 Welcome address from the Chair

The Hon. Sir Laurence Street, AC, KCMG, QC, Commercial Mediator,
Former Chief Justice of the Supreme Court of NSW

8:50 ADR in practice

• Working effectively with the institutionalisation of ADR
• Court-annexed ADR – What is the ‘multi-door Court’?
• Identifying factors which have encouraged organisations to develop an aptitude for ADR over litigation
• Identifying whether compulsory referral to ADR is another hurdle to be overcome before a hearing date

Mary Walker, Chair - Alternative Dispute Resolution Committee, The Law Council of Australia

9:30  Finding the hidden value in conflict (without bringing in the litigators)

• Moving from ‘conflict as a contest’ to conflict  as a potential value creator in organisations
• Discovering conflict as an opportunity for stimulation and creativity
• Understanding the value of drawing out pre-resolution processes
• Recognising the hidden costs of avoidance and speedy resolution
• Building engagement skills
• Exploring some thinking tools for conflict diagnosis

Dr Rosemary Howell, Chairman, Strategic Action

10:10 What lessons have been learned in ADR practice?

• Understanding which ADR methods have been preferred
• Establishing the degree of success of ADR and identifying under what circumstances ADR has failed

Michael Mills, Director, LEADR; Partner, Freehills

10:50    Morning Tea 

11:05
CASE STUDY
Communicating the ADR model throughout your organisation

• Establishing guidelines for use and limitations on the use of ADR
• Promoting fair, transparent and consistent ADR processes
• Implementing mechanisms to prevent overuse of ADR
• Maintaining flexibility with your ADR processes whilst satisfying legislative requirements

Mary Rebehy, Conference Registrar, Administrative Appeals Tribunal

11:45 Best Practice Commercial Mediation

• Establishing commitment by the parties to participate in the mediation in good faith
• Ensuring confidentiality regarding contents of mediation
• Enabling conferencing to occur between the mediator and any party
• Embodying the outcome of the mediation in an enforceable contract between the parties
• Setting out these matters in resolution contracts between the parties

The Hon. Sir Laurence Street, AC, KCMG, QC, Commercial Mediator, Former Chief Justice of the Supreme Court of NSW

Sir Laurence Street practised extensively as a commercial QC at the NSW Bar before being appointed an Equity Judge of the Supreme Court of NSW. After 9 years service, appointed to the office of Chief Justice, Supreme Court of NSW with service in that office extending to fourteen 14 years. He held the office of Lieutenant Governor of NSW for 15 years. Current Chairman, Australian Government’s International Legal Services Advisory Council. Sir Laurence has participated in over 2,000 successful mediations, principally in major commercial disputes, within Australia & overseas.

12:25 Resolving complex technology related disputes - ADRoIT

• Analysing why so many things go wrong with technology procurement
• Determining whether there are better approaches
• Knowing how risk can be managed in technology procurement
• Exploring the ADRoIT Principles and Dispute Avoidance Competency measurement

Philip Argy, Principal and Chief Executive, ArgyStar.com; Arbitration Panelist – Intellectual Property Disputes, World Intellectual Property Organisation (WIPO); Immediate Past President, Australian Computer Society; Chairman, eCommerce Committee, Law Council of Australia

Philip was a member of the Federal Attorney-General's Electronic Commerce Expert Group. He was also a member of the auDA Competition Panel and he drafted the auDRP - Australia's domain name dispute resolution policy. Philip has appeared as an expert witness before Parliamentary hearings in relation to On-line Content Regulation, Cybercrime and Spam. In 1996 Information Age nominated Philip as one of the 50 most influential people in Australia in the information technology field, and he was awarded a ComputerWorld Fellow in 1997 for services to the Information Technology industry.

1:00     Lunch

LITIGATION AVOIDANCE

1:45  CASE STUDY: Service Level Agreement in Practice

• Managing and developing your commercial relationships to ensure litigation does not become an option
• Negotiating and establishing agreement on all aspects of the service level agreement
• Maintaining transparency: Quantifying service levels and the responsibilities of both parties
• Establishing service improvement criteria and effective communication protocols
• Monitoring, tracking and reporting on performance and ensuring both parties are satisfied

Jonathan Grigg, NSW President, Supply Chain and Logistics Association of Australia

2:20  Infrastructure delivery and litigation avoidance through Alliances

Since 1996, the infrastructure purchasers both from public and private sectors have started to use a collaborative approach to infrastructure procurement and delivery.  After more than 130 alliance projects recorded and completed, none yet have resulted in any sort of litigation or even post delivery disputes. Understand how client organisations in major infrastructure projects (water, road, rail, ports) have used Alliance Contracting to deliver large and complex projects…without litigation.

Alain Mignot, Co-Founder and Executive Director, Alliancing Association of Australasia

2:55  The effective use of alternative dispute resolution clauses in contracts

• Ensuring an ADR clause:
  - specifies how it is triggered
  - contains some formula for resolution
• Determining which mode or modes of dispute resolution would be most appropriate to your situation
• Specifying the mode of dispute resolution to be implemented
• Identifying additional parties (or additional contracts) which may be affected by a dispute
• Negotiating in good faith - establishing criteria or objective yardsticks against which negotiations may be judged objectively

Ashley Tsacalos, Partner, Commercial Dispute Resolution, Deacons

3:30   Afternoon Tea

ARBITRATION

3:45 
PANEL DISCUSSION: 

Practical aspects of dispute resolution in international commercial arbitration

• Planning for, avoiding and resolving cross-border contractual disputes
• International commercial arbitration versus litigation in courts – pros, cons & practical considerations
• Exploring various arbitration models
• Drafting effective international commercial arbitration clauses and other dispute resolution clauses

Panelists:

Alex Baykitch, Partner, Blake Dawson; Vice President, ACICA; Member,  International Chamber of Commerce (ICC) Arbitration Commission Task

Alex has extensive experience conducting arbitrations arising from shipping, oil and gas, commodities and aerospace disputes. He has recently conducted international arbitrations arising in the Europe, Australia, and Asia.

David Fairlie, Vice President and Director of Arbitration, ACIA; Partner, Mallesons Stephen Jaques

David principally practices in the area of banking litigation.  He acts for many of the major banks and financial institutions in Australia.  He has extensive experience in dispute resolution - both in managing large Court cases and arbitrations.

Rashda Rana, Partner, Holding Redlich; Fellow, ACICA; Chartered Institute of Arbitrators (London and Sydney Branches); Institute of Arbitrators and Mediators Australia (IAMA)

Rashda has expertise and experience in all aspects of building and construction law. She has acted for government, developers, contractors, financial institutions and insurers in respect of major construction and infrastructure disputes.

Professor Doug Jones AM, President, Australian Centre for International Commercial Arbitration (ACICA); Partner, Clayton Utz

Doug's experience includes advising on major projects in the areas of buildings, road and rail infrastructure, power, potable and waste water, mining infrastructure and processing, and on and offshore oil and gas. He has had extensive experience in PPP and PFI projects. In 1999, Doug was made a Member in the Order of Australia for services to Construction Law and Dispute Resolution, recognising 30 years' contribution in those areas.

Moderator:

The Hon. Sir Laurence Street, AC, KCMG, QC, Commercial Mediator,
Former Chief Justice of the Supreme Court of NSW

4:25
PANEL DISCUSSION:

Ensuring speed, certainty and fairness in international commercial arbitration

• Capitalising on the effectiveness of international arbitration as a form of dispute resolution
• Exploring the latest developments in relation to the International Arbitration Act
• Adapting to the increased willingness of commercial parties to use international arbitration to resolve disputes
• Making international arbitration work for your organisation and ensuring costs and time delays are constrained 
• Negotiating different business standards, working through unfamiliar values and cultural barriers, adapting to complex regulatory frameworks and comprehending sophisticated laws

Malcolm Holmes QC, Immediate Past President, Chartered Institute of Arbitrators, Australasian Branch; Fellow, ACICA; IAMA

Malcolm’s practice encompasses trade practices, equity, general commercial law and common law. He is an international arbitrator and is also an arbitrator member of chambers at 20 Essex Street in London.

Ian Govey, Deputy Secretary, Civil Justice and Legal Services, Australian Government Attorney-General’s Department and Council Member, National Alternative Dispute Resolution Advisory Council

Ian acts on a diverse range of matters including administrative law, federal courts and tribunals, native title, copyright, personal property securities, classification, international law, legal services to government, and drafting and publication of legislative instruments.

Moderator:

The Hon. Sir Laurence Street, AC, KCMG, QC, Commercial Mediator,
Former Chief Justice of the Supreme Court of NSW

5:05 Close of Day One

DAY TWO:  TUESDAY 16TH JUNE 2009

8:55 Opening remarks from the Chair

The Honourable Sir Laurence Street, AC, KCMG, QC, Commercial Mediator, Former Chief Justice of the Supreme Court of NSW

ADR IN THE WORKPLACE

9:00 ADR in the pursuit of workplace fairness and compliance

• Exploring various ADR techniques and the role played by ADR in building workplace fairness and compliance
• Using ADR for sustainable fairness and without compromising on the goal of compliance
• Understanding the suitability of ADR for various types of disputes
• Designing fair dispute resolution procedures

Nicholas Wilson, Workplace Ombudsman, Workplace Ombudsman

MedArb

9:40 Benefiting from hybrid processes: MedArb

• Weighing the advantages and risks in having the same person mediate and then arbitrate the same dispute
• Overcoming the challenges of having the same person play both roles
• Knowing how a professional body may assist in administering the process and making timely appointments
• Incorporating a MedArb clause in your contract
• Choosing the right dispute for MedArb

Alan Limbury, Chartered Arbitrator, Specialist Accredited Mediator and Managing Director, Strategic Resolution (Sydney); Chairman, Complaints Panel of the Australian Self-Medication Industry; Director, Chartered Institute of Arbitrators - Australia

10:20  Morning Tea

10:40
CASE STUDY: The Commonwealth Bank's approach

Good dispute resolution is central to improving customer loyalty, retention and advocacy. This session will explore some of the initiatives the CBA Group has taken to improve customer satisfaction through best practice dispute resolution. Among the topics discussed:

• Creating a customer-centric philosophy in a large and diverse business
• Developing accountability, transparency and empowered decision-making
• Engaging key internal and external stakeholders in the dispute resolution process
• Ensuring the commitment of all staff - at all levels
• Improving products and services through utlising complaint intelligence
• Recognising and rewarding excellence in front-line problem resolution
• Creating incentives to maintain focus
• Determining the return on investment of complaint handling

Brendan French, Head of Customer Relations, Commonwealth Bank Group

11:20 Co-mediation in practice

• Developing an understanding of co-mediation and considering the benefits and perceived drawbacks of co-mediation
• Providing parties a model of effective communication, cooperation, and interaction
• Exploring the practicalities of delivery, such as: preparation; synchronised performance and performance evaluation 
• Making the mediation more efficient by division of tasks between mediators
• Ensuring co-mediators have the same vision of the mediation process and its goals, and a plan that maximises the strengths of the mediation team

Bianca Keys, Mediation Manager, The Accord Group; Assistant Mediation Adviser, Franchising Code of Conduct; Assistant Mediation Adviser, Horticulture Code of Conduct;  Assistant Dispute Resolution Adviser, Oil Code; Assistant Ombudsman, Produce and Grocery Industry Code of Conduct 

12:00 Exploring the avenue of Expert determination

• Knowing which particular issues should be referred to Expert determination and when
• Enabling a consensual process
• Ensuring a more timely resolution of particular issues outside the scope of your organisation’s traditional area of expertise 
• Using a less formal mode of gathering information, without the need to strictly observe the requirements of procedural fairness
• Setting out the referral of matters to Expert determination in a resolution contract between the parties:

           - the issues requiring expert determination 
           - whether the determination was binding or non-binding 
           - whether the determination would include reasons
           - agreement that there would be no appeal from the determination

Robert Hunt, Barrister, Past President, IAMA, Director, ACICA

INTELLECTUAL PROPERTY

12:40 Using ADR in Intellectual Property Disputes

• Exploring dispute resolution clauses in IP contracts
• Knowing how to incorporate ADR into your IP strategy 
• Implementing early dispute resolution strategies 
• Preparing for an IP mediation

Angela Bowne SC, Barrister, Blackstone Chambers; Chair, NSW Bar Association's Alternative Dispute Resolution Committee

1:20    Lunch

2:10 Successful Project Management and Litigation Avoidance

• Ensuring potential risks are identified, communicated and assessed
• Building stakeholder relationships
• Continuous communication and portfolio analysis throughout all projects
• Closing off a successful project

Lesley Bentley, National Vice President, Australian Institute of Project Management (AIPM); Managing Director, Living Planit

2:50  Incorporating ADR into Major Projects

• Incorporating a continuous dispute resolution system into the contract
• Ensuring that during the design process log jams are quickly resolved
• Utilising the process of mediation as a first option
• Setting practical time limits on the resolution of disputes

Anthony Grieve, Vice President, IAMA; Fellow, ACICA

Anthony is also a chartered civil engineer, and a building and construction expert with 37 years of work in the building and construction industry

3:30 Afternoon Tea

3:45  Negotiating and managing commercial contracts using ADR

• Exploring tactics to re-negotiate the contract
• Understanding how each dispute resolution mechanism might best suit parties involved in a dispute
• Drafting an appropriate dispute resolution clause
• Capitalising on a much wider range of outcomes
• Ensuring agreements are reached

Brian Seidler, Executive Director, Master Builders Association

CORPORATE CLASS ACTIONS

4:25  Corporate class actions - special issues for avoidance, early resolution and settlement

• Exploring early resolution strategies for different class action structures ("opt in", "opt-out")
• Dealing with represented and unrepresented class members 
• Analysing issues presented due to the involvement of litigation funders
• "Closing the class" in opt-out class actions for settlement purposes
• Understanding court requirements for settlement approvals and related matters

John Emmerig, Partner and National Head of Class Action Practice, Blake Dawson

John Emmerig has nearly two decades of experience in dispute resolution and government sector advice.  John is ranked by Asia Pacific 500 as one of the 10 leading individuals in Dispute Resolution in Australia.  John has wide-ranging experience in the use of ADR mechanisms, including extensive experience in mediations, Expert determinations, novel ADR solutions anddesigning claim settlement schemes. He has trained in negotiation with the Harvard Negotiation Project at Harvard Law School.

5:00 Close of Day Two

Workshop Agenda

Wednesday 17th June 2009

WORKSHOP A

9:00am - 12:30pm

Commercial Negotiation - getting the best results while minimising the risks

• Understanding the elements of a good outcome to a negotiation
• Identifying the advantages and disadvantages of the different negotiation models
• Knowing when to talk and when to walk
• Exploring rules of thumb and thinking tools for better results

Led by:   Alan Limbury, Chartered Arbitrator, Specialist Accredited Mediator and Managing Director, Strategic Resolution (Sydney); Chairman, Complaints Panel of the Australian Self-Medication Industry; Director, Chartered Institute of Arbitrators - Australia

WORKSHOP B

Achieving Effectiveness and Efficiency through ADR: a workshop in Creative Problem-Solving 

• Breaking the deadlock: mastering the art of issue exploration
• Applying learned skills to a problem that your organisation is dealing with
• Establishing mutual agreements that are cost effective and time efficient, while building working relationships that continue beyond the life of the contract
• Implementing problem-solving techniques in reaching a collaborative agreement that is beneficial and long lasting

Led by:  Antony Robb, Arbitrator, Conciliator, Mediator; Fellow,  Australian Centre for International Commercial Arbitration (ACICA)
 

Pricing
(must register & pay by dates listed)