Alternative Dispute Resolution in Australian Law
Tuesday 1 July 2014 @ 1.26 p.m. | Legal Research
Alternative Dispute Resolution (ADR) is a major component of the Australian legal system, and with the courts continually enforcing Australia's position as a pro-ADR jurisdiction, it is worthwhile examining the types of ADR available to participants in the Australian legal system.
What is Alternative Dispute Resolution?
In an ADR process an independent third person helps people to resolve their dispute. ADR processes do not include judicial determinations, such as decisions made by a court or tribunal.
Forms of Alternative Dispute Resolution are discussed below but the four most common methods include:
- Negotiation;
- Mediation;
- Conciliation; and
- Arbitration
Negotiation
Negotiation is one of the most common processes in the world and is a process whereby parties to a dispute attempt to settle that dispute on their own, without the assistance or intervention of a third party. Parties may either be represented by professional negotiators or conduct the negotiation themselves.
There is no set process for this method of dispute resolution and parties’ approaches can range from extremely combative to extremely facilitative depending on them and on the nature of the dispute. Where no third party is involved there is no agreement or decision reached unless the parties reach it themselves.
Mediation
Mediation is a process whereby parties are assisted in their negotiations by a neutral third party (mediator) to identify the issues in dispute, generate options around these issues, consider alternatives and to attempt to reach agreement that will meet the underlying needs and interests of both or all parties to the dispute.
Mediators do not make decisions about who is right or wrong or what the best outcome should be. The mediator has no determinative power and most commonly, mediators do not offer substantive advice during the mediation. The mediator however controls the process of the mediation, that is the steps and stages of the meeting, and the parties themselves reach any agreement that is made.
Mediation is not an appropriate method of dispute resolution in all cases. This is particularly so in cases of ongoing domestic violence, child abuse, or in certain other relationships of a serious and complex nature.
Conciliation
Conciliation is a term often used interchangeably with mediation. Many statutory or judicial bodies use conciliation conferences in an attempt to settle matters before their tribunal or court. For example the Family Court conducts Conciliation Conferences chaired by a Registrar of the Family Court as part of the court process. These conferences are very often described by the court as being mediations.
Conciliators are usually recognized experts in the field of the dispute and are empowered to suggest or give advice on likely settlement terms. It is not uncommon for the third party conciliator to be very persuasive and to recommend strongly certain outcomes that they believe are suitable. Conciliators also have no determinative powers.
Arbitration
Arbitration is a process in which the parties to a dispute present the facts of their case to a neutral third party to make a determination on that dispute. The third party arbitrator is ordinarily a recognised expert in the specific field of the dispute. Arbitration is a process very close to judicial determination and parties adopt an adversarial (“A” vs “B”) stance.
The main differences between arbitration and litigation are that arbitration proceedings and decisions are private, and the arbitrator is a third party expert specifically chosen by the parties. Arbitral decisions (also known as awards) may be registered at a court to give them the effect of a court order for the purposes of enforcement.
Where is ADR found in Australian Law?
References to ADR can be found in all aspects of Australian Law, however more recently, cost pressures and the search for greater efficiencies and fairness have led to a greater focus on ADR processes in the context of the litigation process, a trend which has been driven by both the legislature and the Courts themselves.
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