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.

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.

Lawyers involved in more than a few mediations get a sense of when a mediation should settle and when settlement is only a remote chance. Sometimes the parties’ expectations are not far apart, and other times there is a gulf that seems too far to cross.

But sometimes disputes that should settle don’t, and some that no one expects to settle do.

Whether your client realises it or not, they want three things from a ‘successful’ mediation, and those three things play a big part in success or failure of the mediation.

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.

Not all mediations are equal. Most litigators have experience with disputes that settle early, on sensible terms, and with contented clients. Most also have experience with disputes which settle on the doorstep of the trial simply because the parties have run out of time, willpower, money, or some combination.

It is essential that parties and their advisers consider when a mediation has the best chance of success, and it may not be when you would think.

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.

I have recently established a new legal practice, intending to focus on commercial law and resolving disputes, without litigation if possible. I will now accept appointment as a mediator or facilitator to help parties resolve their disputes with fewer regrets. In this post, I explain why.