When lawyers act as mediators or arbitrators: legal practice and insurance consequences in South Australia
This article examines whether lawyers acting as mediators or arbitrators are engaged in ‘legal practice’ under the Legal Practitioners Act 1981 (SA), and the implications for professional discipline and compulsory professional indemnity insurance. It argues that while neutral ADR is not ‘legal practice’, liabilities arising from such work may still be covered where conducted through, and in connection with, an active and insured legal practice.
High Court clarifies proportionate liability in arbitration … Maybe a little?
The High Court’s judgment in Tesseract International v Pascale Construction [2024] HCA 24 doesn’t give Australian arbitration practitioners the clarity they hoped for. While the outcome is clear, the divergent reasoning will give plenty of scope for future appeals.
Rethinking proportionate liability in arbitration
The late-2022 SA Court of Appeal case of Tesseract International Pty Ltd v Pascale Construction Pty Ltd [2022] SASCA 107 concluded that the common proportionate liability regimes around Australia are unlikely to have application within arbitral proceedings. The Court’s reasoning was based primarily on a finding that the proportionate liability laws were not intended by the relevant parliaments to apply within arbitration.
If the Court of Appeal’s approach is correct, it substantially undermines the attractiveness of arbitration as a method of resolving commercial disputes, particularly for professional consultants such as engineers. Further, if the applicability of statutory law within arbitration depends on an analysis of the intent of parliament on a statute-by-statute basis, it opens up a new way in which Australian Courts can potentially intervene in arbitration.
Is alternative dispute resolution the better alternative for insured parties?
Adam Rosser presented to insurance professionals of the Australian Professional Indemnity Group on the topic of alternative dispute resolution.
All too often, parties (insured or not) get trapped in a cycle of litigation to the death or to exhaustion. In this paper, Adam looks at some alternatives and when they are appropriate.
What is the difference between mediation and arbitration?
Many people think that mediation and arbitration are the same, but they are not.
However, mediation and arbitration do share some important features, that make them a more attractive way to settle disagreements than going to court.