The Honourable René Le Miere KC is a former Justice of the Supreme Court of Western Australia and one of the country’s most respected mediators and arbitrators.
With decades of experience across commercial litigation, construction, infrastructure, and mining disputes, he brings both gravitas and pragmatism to complex matters. Since retiring from the bench in 2022, he has focused exclusively on dispute resolution – regularly acting as a mediator, arbitrator, and expert determiner. A strong advocate for early resolution mechanisms, his Honour was the keynote speaker at the inaugural Dispute Resolution Board Foundation Luncheon in Western Australia, an event dedicated to promoting prevention-focused and contract-based alternatives to lengthy and protracted litigation and courtroom conflict.
Rene, thank you for your time. It is such a privilege to be able to interview you, not only given your career in the law but also given your previous role as editor of the Brief. I know our audience will appreciate your time and perspective, especially as we consider the shift in culture that the new Standards Australia AS4000 dispute resolution clauses might represent. Can I begin by asking for your overarching view on dispute resolution in construction?
It’s a pleasure to be part of this discussion. My central view is this – resolving disputes during the course of a project, rather than years later through litigation or arbitration, is always in the best interests of all parties. That may seem obvious, yet time and time again we see disputes left to fester, with positions hardening, costs escalating, and relationships deteriorating.
It is often said the collective noun for the parties to a construction contract ought to be “an argument”. Once a contract is signed, the burden of interpreting and applying its terms begins – drawings, specs, time bars, notices, you name it – and that process continues right through to project completion. It is within that complex, pressured environment that disputes frequently arise.
You said in your recent speech to a very impressive audience interested in Dispute Boards in WA that there were many reasons why construction disputes can become more and more challenging to resolve the longer they go on.
Certainly. In my experience, prolonged processes – whether litigation or arbitration – make disputes more intractable and expensive. Delay doesn’t just cost money; it entrenches positions. People become personally and professionally invested in their stance. Project officers, contract managers, legal counsel – all become wedded to the rightness of their case.
Once formal legal advice is sought, that phenomenon can worsen. Legal advisers may unintentionally amplify confidence in a party’s prospects, sometimes because of limited facts, sometimes due to pressure from the client, and sometimes just because that’s how the adversarial system works. And once that occurs, it becomes increasingly difficult to pivot or compromise, even when it’s clearly in everyone’s interests to do so.
And in that sense, the new AS4000 dispute avoidance and resolution clauses – particularly the introduction of Dispute Avoidance Boards and a specific selection for private mediation – feels like a cultural intervention. Would you agree?
I would. I think the new clause is a significant development. It provides mechanisms for timely resolution, whether by mediation or a standing Dispute Avoidance Board. The key point is that these are not bolt-ons – they are embedded within the contract. That alone signals a shift in thinking.
But it will only work if we, as a profession, also shift our mindset. We can’t just treat these clauses as procedural footnotes. They must become tools of the trade, engaged with at the outset and throughout the life of a project. We must stop seeing the courts or arbitration as the natural destination for disputes and instead see them as a last resort. As I said recently, court should be to dispute resolution what prison is to sentencing – used only when all else fails.
That’s a powerful analogy. One idea from your speech that really struck me was how assessors and managers on construction projects often get stuck in their positions. You even referenced Barbara Tuchman’s concept of “wooden-headedness.” Could you expand on that?
Certainly. What happens is this: during a project, assessors, administrators, superintendents – those evaluating variations, time extensions, cost claims – become committed to the decisions they’ve made. There’s a natural human tendency to defend one’s judgment, especially in a complex technical field like construction.
Tuchman’s idea of “wooden-headedness” – that is, sticking to a course of action despite clear evidence to the contrary – applies here. People tend to interpret new information in ways that confirm their original view. Add in reputational concerns – nobody wants to be seen as having made an error – and suddenly you’ve got rigidity where you need flexibility.
That rigidity carries up the chain. When a senior executive is briefed by someone firmly convinced of their position, it becomes harder for that executive to come into a mediation or negotiation with an open mind. I’ve seen this many times – even when senior people are at the table, they’re still speaking through the lens of their team’s original stance.
And that mindset must spill over into mediation as well?
Indeed. I recall a mediation where the key assessors from each side were still very much embedded in their positions. Even though we had the right people in the room, they were not truly open to interest-based dialogue. It became a kind of proxy litigation – a debate over who was right, rather than a problem-solving session focused on the future.
Mediation is most effective when parties are able to step back from their positions and look at their interests – what they truly need to move forward. But that requires trust, timing, and often a bit of humility. That’s why early, ongoing mechanisms like dispute boards are so valuable – they can resolve matters before positional entrenchment sets in.
Given that, do you see Dispute Avoidance Boards as a potential fundamental change in project governance?
I do. A well-functioning Dispute Avoidance Board (DAB) is able to be proactive, involved from the start, and offers a channel for real-time problem-solving. It becomes a cultural circuit breaker. And importantly, it helps avoid claim accumulation – the “sleeping volcano” of unresolved issues that erupts at the end of a project.
Setting up a board takes effort. There’s upfront cost and coordination. But if you contrast that with the cost of formal proceedings – years of legal fees, expert reports, project team disruption – it’s a sound investment.
Plus, I am led to believe that whilst not yet common in Western Australia the very existence of a board can deter bad behaviour. When people know there’s an independent, informed body watching, it encourages transparency and engagement.
Do you think lawyers – particularly front-end lawyers – need to play a more active role in advocating for these mechanisms?
Yes, and I’d go further: I think it’s time lawyers became not just advisors but designers of resolution pathways. Drafting dispute clauses is not about box-ticking – it’s about shaping how risk, conflict, and relationships are managed. A good front-end lawyer can set the tone for an entire project’s dispute culture.
If we want to serve our clients well, we need to embed dispute avoidance strategies—not just escalation ladders. We need clauses that allow for circuit breakers, not time bombs. That’s what I expect Standards Australia are attempting to do with AS4000 changes.
You’ve also spoken about the limitations of legal advice in dispute resolution – particularly the risk of overconfidence once proceedings begin. What do you think drives that?
Several things. First, there’s often pressure – clients want certainty, they want to feel supported. So, lawyers sometimes overstate their client’s prospects, perhaps unintentionally, based on limited facts. But litigation is a long journey, and the facts almost always evolve.
Second, once formal legal positions are adopted, they tend to become harder to shift. The adversarial nature of litigation encourages a kind of war footing. Lawyers fear appearing uncertain or disloyal if they revise their advice later. So, you get this dynamic where everyone keeps doubling down, even as evidence shifts.
Again, this is where early, collaborative mechanisms can break that cycle. If a dispute board gives a well-reasoned determination or even a contemporaneous indication of the likely position during the project, that can prompt parties to reassess their case with more realism. It’s not binding in the same way as a judgment, but it can be highly influential.
So much of what you’ve said comes down to timing. Whether it’s establishing a board early, addressing an issue before it festers, or resolving disputes before court proceedings, timing seems to be the linchpin.
Exactly. Timeliness is not just a procedural concern – it’s a cultural one. The sooner a dispute is addressed, the more likely it is to be resolved without damage to the project or the relationships involved.
Communication is essential. The absence of timely information exchange can turn a benign issue into a full-blown dispute. A structured dispute resolution mechanism encourages that communication. That’s why I often say: avoid the drift. Don’t let disputes drift into legal battles. Confront them early, with the right tools and the right mindset.
Finally, if you could speak directly to the audience – contractors, clients, lawyers – what would your message be about the opportunity that dispute avoidance presents for improving the commercial positions in projects and the industry, and providing access to justice for more of society?
Dispute avoidance is not just a defensive strategy – it’s a commercial advantage and a societal contribution.
First, from a commercial perspective, dispute avoidance strengthens project outcomes. It reduces the financial and time costs associated with formal disputes, protects relationships, and keeps projects on track. When we embed early warning systems, foster open communication, and resolve issues collaboratively, we create more predictable, efficient, and profitable projects. That kind of consistency builds trust across the industry and elevates everyone’s commercial position.
Second, there’s a broader, often overlooked benefit: access to justice. Many stakeholders – especially smaller contractors or less-resourced clients – don’t have the means to pursue formal legal remedies. Dispute avoidance mechanisms offer a more accessible, less adversarial path to fairness. They help ensure that rights are respected and voices are heard without the need for costly litigation.
So, my message is simple: dispute avoidance is not just about avoiding problems – it’s about creating value, building trust, and making the industry more just and inclusive for everyone.
For more information on Dispute Avoidance Boards see www.drbf.org.au for more information on the new AS4000 General Conditions contact www.standards.org.au or alternatively you can contact Michelle Antonio via www.mediatus.com.au
