Over the past 3 – 4 decades, alternative dispute resolution (ADR) has become an integral feature of the Australian dispute resolution landscape.
In 2016 Wikipedia describes ADR as follows: –
“ … ADR (known in some countries, such as Australia, as external dispute resolution) includes dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation. It is a collective term for the ways that parties can settle disputes, with (or without) the help of a third party … ”
ADR is usually a structured process that is guided by an independent third party. In this sense, many ADR processes can be distinguished from the various types of informal negotiations that can be conducted between parties at any time prior to litigation, during the course of extensive litigation, as late as walking up the steps to enter the Court and at any time up to formal Judgment.
A most critical feature of ADR in Australia is that it is confidential. The willingness of parties to voluntarily settle their differences through various ADR processes depends in large part on the confidentiality of the process.
If parties fear that their disclosures to independent third parties or other parties during an ADR process may be used against them or published outside the settlement process, it is likely that the use of the process will decline or the process will be weakened by parties manipulating their presentation to ensure that the independent third party and/or the other parties are not provided with certain information that might otherwise be critical to a settlement being reached during the ADR process.
In the vast majority of cases in Australia participation in the ADR process is voluntary. Although in some instances it may be a mandatory, for example anyone seeking a parenting order must attempt to negotiate a settlement before the Court will accept their application (subject to certain exceptions).
There are a wide range of ADR processes available in Australia. Some of the commonly used are as follows:
Assisted Negotiation and/or Informal Settlement Conferences
You and your solicitor meet with the other parties and their solicitors to discuss the issues.
Negotiations between the parties without legal representative or support persons
Mediation
An independent person (the mediator) helps the parties to a dispute to work out the issues and come up with a solution which everyone accepts.
It is up to you to make an agreement and you retain control of the outcome.
A court or tribunal may order you to try mediation before taking the matter to trial. Mediation may also be required under the terms of a contract as a method of dispute resolution. However, in other cases, mediation is voluntary so you cannot force the other party to mediate.
Compulsory Family Dispute Resolution
Compulsory Family Dispute Resolution is a process separating families must undergo before they can make an application to the Court. It gives you an opportunity to resolve your dispute without having to pay for an expensive trial. Dispute resolution services come in many forms, including services like: family counselling; negotiation; or conciliation. You can choose the type of dispute resolution that best suits your situation as long as long as your dispute resolution provider is a registered Family Dispute Resolution Practitioner.
Conciliation
Similar to mediation, an independent person (the conciliator) helps the parties to a dispute work out the issues and find a solution.
Usually, the conciliator is an expert on the subject of the dispute. They are more active in finding a solution and will help you and the other parties look at the strengths and weaknesses of your arguments but will not decide the issue for you.
You retain control of the outcome.
A court or tribunal may order you to try conciliation before taking the matter to trial. Conciliation may also be required under the terms of a contract as a method of dispute resolution.
However, in other cases, conciliation is voluntary so you cannot force the other party to conciliate.
Case Appraisal
An independent person (the case appraiser) assesses the merits of the case and makes a decision similar to a judgment of the court.
Arbitration
The parties to the dispute choose an independent person (the arbitrator) to act as a judge.
Appointment of an Independent Solicitor
Solicitors or parties may request the President of the Law Society to act on the sale of former matrimonial property pursuant to the Terms of Settlement or Consent Orders
Collaborative Law
Collaborative law is designed to focus on resolution and minimizing conflict. Parties and their solicitors agree to make an attempt to reach a mutually acceptable settlement.
In the event this is unsuccessful parties can proceed to Court but with different legal representatives
Expert Determination
This is an alternative procedure for the resolution of disputes based on the decision of an independent third party, the Expert. This is common in building and construction disputes.
The Expert is necessarily an expert in the field where the dispute has occurred.
The literature both in Australia and from international sources, related to ADR, suggests that ADR has potentially positive benefits for court systems through various clear and obvious advantages.
- Some of the advantages are:
- reducing filing of formal proceedings;
- increased settlement(s);
- assisting in promoting full client awareness;
- providing clear opportunity for, and encouragement of, settlement rather than adjudication;
- reduced costs in relation to the dispute resolution by avoiding formal litigation;
- reducing both hearing related as well as case preparation costs by narrowing the issues that require adjudication within the courts;
- reduced time in dispute;
- developing sustainable solutions that are less likely to be subject to repeated re-litigation;
- improved satisfaction with the outcome or manner in which the dispute is resolved among disputants.
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