Originially from: World Arbitration and Mediation Review (WAMR) 

An Assessment of Arbitration and Mediation as Means of Resolving Commercial Disputes
Compared with Litigation: A Review ofMAXWELL J. FULTON, COMMERCIAL ALTERNATIVE
DISPUTE RESOLUTION
1
By Gabriel Moens, Professor of Law, University of Notre Dame in Perth

I. Introduction
Modern means of communication and the liberalization of international trade have made
the world into a global marketplace. Businesses that participate in that market may want to
resolve their domestic or international commercial disputes by arbitration or mediation2 as
opposed to litigation (or adjudication). Indeed, there is a growing awareness among lawyers and
business people that litigation is not the only, and frequently not the best, method of resolving
commercial disputes. Hence, Alternative Dispute Resolution (ADR) methods, which
traditionally encompass all alternatives to litigation, including negotiation and conciliation, are
receiving increasing recognition.3 This recognition of ADR as a viable alternative to litigation
has manifested itself in Australia in the establishment of ADR organizations, for example
LEADR, and the elaboration of ethical standards for the industry, notably by the Law Council of
Australia, and the National Alternative Dispute Resolution Advisory Council (NADRAC). In
addition, several institutions of higher education are offering courses in ADR, including the
University of Technology, Sydney, Bond University, The University of Queensland, The
University of Western Sydney, Latrobe University, and The University of Notre Dame
Australia.4
Maxwell J. Fulton’s book, Commercial Alternative Dispute Resolution, assists lawyers
and business people in their attempt to understand and evaluate ADR processes, especially
mediation and arbitration, which he compares with litigation. It is a practical guide, not only to
the alternatives to litigation, but also to why those alternatives are pursued in the commercial
sector. Fulton describes arbitration and mediation as the “main alternatives” to litigation.5 In
this context, the term “alternative” is used loosely and superficially because any method that
does not involve litigation must necessarily be an alternative to it. It is the purpose of this review
to compare some of the key characteristics of mediation, arbitration, and litigation in order to
ascertain the extent to which Fulton’s assumption that mediation and arbitration are alternatives