Multi-tier Dispute Resolution in Australia

Abstract

The Australian approach to multi-tier dispute resolution and arb-med clauses may be described as one of progressive acceptance. Australian courts now generally recognise and give effect to negotiation and mediation clauses, where entered into as a prerequisite to litigation or arbitration. ‘Good faith’ negotiation clauses and ‘agreements to agree’ a future dispute resolution process are also increasingly accepted, although clauses which are futile or unconscionable will not be enforced.

The current regime for arb-med was introduced in Australia in uniform State and Territory domestic arbitration legislation from 2010 and is based on the Singapore and Hong Kong models. While a recent New South Wales decision reveals a willingness to support the process, concern exists about the strict requirement for party consent to a mediator continuing to act as arbitrator. There is currently no scope for parties to choose arb-med in an international arbitration seated in Australia.

Note: This chapter was reproduced with permission of the Licensor through PLSclear and originally published as Garnett, R. (2021). Multi-tier Dispute Resolution in Australia. In A. Reyes & W. Gu (Eds.), Multi-Tier Approaches to the Resolution of International Disputes: A Global and Comparative Study (pp. 343-362). Cambridge: Cambridge University Press. doi:10.1017/9781108854306.014. The originally published chapter can be found here: https://www.cambridge.org/core/books/abs/multitier-approaches-to-the-resolution-of-international-disputes/multitier-dispute-resolution-in-australia/D67F8F23032E762A81BE1D148F86E23B.

Keywords: Australia, multi-tier clause, mediation, negotiation, good faith, agreement to agree, arb-med clause