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There is an increasing prevalence of an actual or supposed duty to negotiate in ‘good faith’ (or similarly worded obligation such as ‘genuine effort’) arising in general law, court-ordered and statutory contexts. The duty is a concept with which courts struggle. Usually the process of negotiation is not defined or it is done so inadequately, and little is offered in terms of what the process should entail. The ‘good faith’ component of the duty is often treated inconsistently or in a confused manner, making it difficult for practitioners to apply the duty and give advice on it. Common ethical approaches of negotiators are also not properly understood, further complicating matters.

The situation is ripe to be systematically analysed from a ‘negotiator’s’ perspective in order to improve practitioner understanding of the duty and promote and develop ways to ensure that the duty can be given proper effect, and party relationships enhanced.

This presentation will capture attention by succinctly distinguishing the duty as it applies at general law and in the Native Title context (with minor references to other contexts as appropriate), identifying problem areas with the law and communicating alternative ways to conceptualise the issues which may best give effect to the duty.

Adam’s presentation will synthesise and challenge existing judicial decisions in an easily accessible way, provoking much thought and promoting ADR excellence.

Adam will combine analysis of the law/principles with interactive audience participation, including covering:

• the different mindsets taken to ethical problems;
• key definitions/components comprising the duty;
• principles heavily discussed in cases – eg, regarding dispute resolution processes or how the concept of ‘reasonableness’ can or might apply;
• key criteria constituting good faith/bad faith conduct; and
• common situations practitioners would find themselves in which would test good faith considerations.

Podcast: Listen to Adam talk about this session pre-kon gres (5 mins) >>

Adam enjoys running and going to gym. Having previously been a keen tennis and Australian Rules Football player, Adam is now enjoying his newest challenge in golf.