Alternative Dispute Resolution (ADR) is usually an umbrella term for processes, other than judicial determination, in which an impartial person (an ADR practitioner) assists those in a dispute to resolve the issues between them. The main types of ADR are mediation, arbitration and conciliation and their value should not be overlooked; ADR has the potential to produce the best outcomes for clients in a more relaxed environment.
ADR processes may be facilitative, advisory, determinative or, in some cases, a combination of these. The ADR practitioner in a facilitative process, such as mediation, uses a variety of methods to assist parties to identify the issues and reach an agreement about the dispute. Advisory processes, such as conciliation or expert appraisal, employ a practitioner to more actively advise the parties about the issues and range of possible outcomes. A process can be selected to best suit a particular dispute.
There is currently no comprehensive legislative framework for the operation of ADR in Australia and as a result has not established its status as a normal and accepted legal practice. Many different laws govern the operation of ADR in the different Australian jurisdictions.
Mediation
Mediation is usually considered to be a process in which the participants, with the assistance of the dispute resolution practitioner (the mediator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The mediator is usually regarded as having a facilitative role and will not provide advice on the matters in dispute.
Arbitration
Arbitration is a process in which the parties in a dispute present arguments and evidence to a dispute resolution practitioner (the arbitrator) who makes a determination. Arbitration is particularly useful where the subject matter of the dispute is highly technical, or the rigours of court-like procedure are desired with greater confidentiality. In such circumstances, a person who has expertise in the field may act as arbitrator. In Australia, commercial arbitration is governed by uniform legislation in the different States and Territories, for example the Commercial Arbitration Act 1984 (NSW). For this reason the processes and regulations may change depending on what state you live in.
Conciliation
Conciliation is usually considered to be a process in which the parties in a dispute, with the assistance of a third person (the conciliator), identify the issues in dispute, develop options, consider alternatives and endeavour to reach an agreement. The conciliator has an advisory role, but not a determinative one. The conciliator is often legally qualified or has experience with, or professional or technical qualifications in, the subject area of the dispute that they are conciliating. The conciliator may suggest and/or give expert advice on possible options for resolving the issues in dispute and may actively encourage the participants to reach an agreement. The conciliator will be responsible for managing the dispute resolution process; including setting the ground rules, managing any apparent power imbalances between the participants and ensuring the participants conduct themselves appropriately. In conciliation processes the parties are often accompanied by expert advisers, including legal advisers.
Here at The Quinn Group our experienced team of lawyers can assist you in resolving your legal issues through ADR in order to potentially prevent a court case. We can also assist you in your litigation matters and represent you in court, should the need arise. For more information on ADR or on any other legal issues submit an online enquiry or call us on 1300 QUINNS (784 667) or on +61 2 9223 9166 to book an appointment.
