The adversarial nature of resolving disputes has long been understood as an expensive, stressful and time consuming process. As such, it is not for everyone and many people have an aversion to using the court’s system to resolve their disputes.
Alternative Dispute Resolution (ADR) is a term used to describe a suite of non-judicial processes that seek to assist disputing parties reach a resolution, almost always by consent or agreement.
It is now commonplace to see dispute resolution clauses within contracts that obligate the parties to attempt an alternative dispute resolution process before they commence legal proceedings. Equally, the Courts now require parties to have attempted some form of dispute resolution before legal proceedings are set down for trial.
Such is the prevelance of ADR that it really shouldn’t be thought of as an ‘alternative’ at all because attempts at resolving a dispute by consent is now often the first method adopted by the parties.
Below are some details of a number of different ADR processes that could be utilised to resolve a dispute outside of the court system, privately and almost always on a without prejudice basis so that your legal rights are not compromised.
Mediation is the most commonly used method at resolving a dispute and is suitable for almost any dispute. It can occur anytime (often the earlier the better). As a facilitative approach it revolves around the parties themselves reaching a consensual agreement between them.
It is ‘facilitated’ by a mediator who is an independant third party engaged jointly to act as a ‘peacekeeper’, ‘go-between’ and a ‘sounding board’.
The mediator does not take sides nor give advice, their role is purely to ensure each party gets to say their piece without interuption, help develop the real issues in the dispute and help the parties reach agreement.
The mediation is often held face-to-face to start and then the parties ‘break-out’ to hold private sessions with their advisors and the mediator.
If an agreement is reached it is often put in writing which ensures each party fulfils their respective conditions and obligations to settle the dispute.
A conciliation process is much the same as a mediation in terms of it’s setup and format.
However, the conciliator will be an expert or specialist in the particular field to which the dispute relates. They have an expanded role such that they will be able to give advice about a specific aspect of the dispute.
The advantage of having a conciliator is that the dispute may hinge on one or two aspects and having the advice of the conciliator may well push the dispute one way or the other to the point that an agreement is more likely to be reached.
A conciliator does not decide a dispute or the issue being addressed, they merely offer their opinion on it. The parties will need to decide for themselves how the dipute will settle.
Conciliation often utilises experts and is therefore suitable when the issues in dispute are quite narrow and involve a technical or legal issue.
Arbitration is the most formal process considered an ADR avenue and the most like a court process. It involves the appointment of an arbitrator who makes a determination about the dispute.
The arbitrator is predetermined through a contract, agreed upon between the parties or nominated by an independant person and will always be an expert or specialist in the field in which the dispute relates. After hearing both parties and the evidence the determination is binding on the parties by agreement.
Arbitration is suitable for highly technical disputes that require experts to make proper and considered evaluations of the evidence.
It has the advantage of remaining private and is therefore very useful where the disputing parties do not wish the dispute (and the evidence that will be adduced within it) to be made public through open court proceedings.
The most common method used to resolve a dispute before it gets before the courts is simple negotiation. When a person realises they are in a dispute they will usually try to negotiate there way out of it and reach an agreement
When you engage a litigation lawyer their mind will no doubt go straight to negotiating the best outcome as early as possible for you. That mindset should be maintained throughout a dispute and throughout the legal proceedings. There are opportunities to negotiate a reasonable outcome at every turn.
It may even be worth negotiating a particular point or issue so that it can be put to one side and narrow the issues in the dispute and the ultimate issues that a court might need to determine.
You should be open to negotiating an outcome that you can live with. Sometimes that isn’t possible but more often than not a proper and considered approach to all the issues in dispute will find a resolution when considered against the potential effect of ongoing litigation.
Unfortunately, we have had to close our physical office during the Covid-19 crisis which has caused extraordinary disruption with all staff needing to work from home (as best they can).
As a father with small children that both suffer with respiratory illnesses, we are keeping our children home. It will be very difficult for our office to run effectively for the foreseeable future and I appreciate your patience at this time.
Given the difficulties, we are temporarily limiting our home office 'core hours' to 10.00am to 2.00pm, Monday to Friday for phone calls and 'ordinary' working hours.
Please do not expect that we will be able to address any enquiry or phone call outside of those times and we will get back to you and address your enquiry as soon as possible.
We hope you appreciate the situation we are in and I certainly apologise for any inconvenience or delay this may cause.
If your email or enquiry is genuinely urgent please call me on my mobile 0420 308151 and I will answer if I am free but otherwise leave a voicemail alerting me to the urgency of the matter.
We wish you well and hope you stay safe during this unprecedented time.