The Dispute Resolution Board Foundation Conference

The first conference was in Sydney: the DBRF Conference. I first qualified as a mediator many years ago, on the basis a smart thing for a poacher to do is to learn how gamekeepers go about their business.  But I have done a steady stream of mediations over the years as mediator (as well as dozens as counsel), and always rather liked doing them.  So far, I have never failed to resolve a dispute as mediator.  This is a bit of a silly record – a bit like Perry Mason never losing a case. If I were to do more mediations, then there would inevitably be a failures.  But right now, I bask in my untainted record for keeping people out of court.  In almost cases in my field (construction law) going to court for a long trial is awful – like trench warfare, in the sense that both parties suffer huge cost.  Quick little forays, like commando raids, are OK.  But not long wars.

Anyway, DRB’s are a rather good idea for large projects.  It is a very particular sort of mediation process.  The idea is that a board – usually of three independent people – maintain a sort of a watching brief, with site visits and meetings with the parties every once in a while, and the board sorts out problems as they arise, before they get to be full-blown disputes. There is typically one lawyer among the three, and I would be good at that.  Sometimes, when there is a dispute between two clients of our firm, I offer a process whereby I say that we will not act in litigation against either party, but if they want, I will chair a meeting with both clients, listen to what the dispute is all about, and then suggest to them both – straight from the shoulder – what would be, in my view, a sensible and fair solution to their problem. Again, this process has never failed to produce a satisfactory outcome, and those involved often say, “Why can’t we do this all the time?” The answer, usually, is because they are an awful lot of lawyers who love a good bun fight. But the DRB approach is a similar sort of a concept, and the track record for it is really very good.  They do it a lot in the USA (where the prospect of litigation is even more appalling than in most other places) and internationally, but it only just starting to catch on in Australia.

I did something similar a while ago as a one man panel for a nuclear power project in the Ukraine. I cannot say anything about it, obviously, but I did soon learn something remarkable: that when Chernobyl blew up, it was just one of 4 reactors on the same site. The explosion knocked out 2 of the others. But the 4th one kept running.  The West said something like, “Turn that frigging thing off!” The Ukrainians said something like, “Love to. But can’t. It’s all we have got now, and we don’t have the money to build a new one”.  So the West said something like, “We’ll treat you”.

A surprisingly number of big hitters from around the world came to this conference. Clayton Utz were kind enough to host a drinks party for the delegates at their new offices: they have a brilliant view of the Harbour Bridge from their balcony on the 690th floor of a huge building that looks as if it is made from glass.

The conference dinner was at the Archibald.  This was my favourite: Art does belong; a portrait of Fenella Kernebone by Nick Stathopoulos.  Nothing much on a computer screen, but rivetting in real life.  Worth the trip, if you are in Sydney, just for this one.

After dinner, there was a speech by Bob Hawke, who is pretty ancient these days, but rather to my surprise was still very sharp.  Having lived through the ravages of socialist Prime Ministers in the UK like Jim Callaghan, who presided over the destruction of the economy (and for that matter, the ersatz glitter of Blair/Brown’s “New Labour”, whose legacy will not be remembered kindly) I was not ready to be impressed, but nevertheless, I was, rather.  He is obviously blousy, and excessively pleased with himself, but at least he was still showing some gumption.  By comparison, the current crew look pretty ordinary.

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