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'kon gres 2011 participants via a password protected area. Click here >>
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.
Adam commenced legal practice in 2007 at Allens Arthur Robinson. He was involved in several high profile matters. His work covered the areas of product liability, trade practices, general litigation, human rights, corporate and pro bono. At present Adam is a senior lawyer at Chalk & Fitzgerald, acting on Native Title and Aboriginal Land Claim matters across New South Wales and in the Kimberley Region. Concurrently, Adam is a nationally accredited mediator working in the ADR field with a commercial and community focus.
Adam’s ADR achievements include winning the 2007 Law Institute of Victoria Negotiation Competition, judging the grand finals of numerous law school negotiation competitions, obtaining advanced certification in negotiation and conflict resolution at Harvard University (2009), and winning a Monash University award for a postgraduate international commercial arbitration unit (2008).
In 2005/6, Adam's interest in major conflict led him to work for the judges at the International Criminal Tribunal for the former Yugoslavia in The Hague, on Prosecutor v Slobodan Milošević.
Adam considers the duty to negotiate in good faith to be a particularly important topic given its widespread appearance in contexts ranging from court ordered ADR, to contracts to native title and industrial relations. This is especially so in the presence of a more general culture shift in legal practice.