Resolving Disputes Without Court
Useful for: Government, Local Government, Business (all kinds)
In Brief
- Alternative Dispute Resolution (ADR) (meaning resolving disputes outside Court), can be a facilitative or determinative process (or a mixture of both).
- The main processes used in Australia are mediation, expert determination and arbitration.
- ADR processes work by introducing an impartial third party (usually an expert in law or a discipline that relates to the dispute), who either facilitates discussions between the parties to reach agreement themselves (facilitative) or receives submissions/arguments from the parties and makes a decision (determinative).
- Benefits of resolving disputes outside the court system include:
- the proceedings are private and usually remain confidential.
- there is a good deal of flexibility available, allowing the parties to tailor the process to suit their particular needs.
- the impartial third party facilitating or determining the matter can be chosen for their legal and/or technical expertise, to suit the particular matter.
- parties work more co-operatively with each other in an environment that facilitates open communication without the rigid rules imposed on the judicial system, allowing them not only to resolve the dispute, but potentially maintain and build their relationship.
- Even in complex arbitration, which is the ADR method that most closely resembles litigation, the process will usually be significantly faster and cheaper than pursuing the matter through the court system.
- Rules of court often encourage or mandate ADR either prior to proceedings being commenced or at any time within the proceedings where appropriate. Specific legislation (for example Civil Appeals legislation) may also mandate ADR.
- In some cases a particular process, for example mediation, is mandated by legislation. Sometimes there is no legislative requirement to use ADR, but the parties have agreed to use certain ADR methods in a contract.
- Where ADR is contractually agreed, it is open to the parties to choose a different method at the time of the dispute if the methodology in the contract doesn’t suit the parties’ purposes when a dispute occurs.
- Regardless of whether there is a contractual or legislative obligation to use ADR, it should be carefully considered by the parties to any commercial dispute.
- Other than in particular circumstances (for example where there are multiple parties with differing interests or complex/novel questions of law to be determined), there is no dispute that can’t be resolved using an ADR method where the parties have a bona fide desire to reach agreement and move on.
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