Alternative Dispute Resolution Techniques in Australian Courts - Assignment Example

Alternative Dispute Resolution Name: Institution: Alternative Dispute Resolution For the past few decades, majority of civil cases are being settled before juries, courts, or judges reach a final determination. This implies that alternative means are applied to settle these cases, with the courtroom trials being used as the last resort. The idea of alternative dispute resolution (ADR), also called additional dispute resolution, represents any resolution strategy that falls under the nomenclature for the different creative means being applied to solve cases short of courtroom proceedings. According to Lamb and Littrich (2007), such strategies may include negotiation, conciliation, arbitration, and mediation, among many others. The past two decades have seen a spectacular increase in the use of ADR techniques in Australian courts. In Australian context, ADR methods fall into two categories. One class represents the adjudicative methods like arbitration where an individual party makes a binding decision to both parties in the dispute, while the other represents negotiation-centered methods like mediation, conciliation, and others. However, in recent times, courts have expanded ADR methods to include other resolution processes in addition to the adjudicative methods and arbitration. As reflected in the definition given by Australian Law Reform Commission (ALRC) (2010), ADR refers to any process, other than determination by courts, whereby an independent individual assists parties to a dispute to solve their problems, and encompasses methods such as conciliation, mediation, and others. Dispute settlement through ADR is beneficial as it reduces costs and time that parties would have taken pursuing court trials. However, there exists a possibility of power disparity between the disputing parties, which may hinder correct determination. This research explores use of ADR processes in Australian courts. In particular, the essay will examine the connection between Australian courts and ADR processes of negotiation, mediation, conciliation, and arbitration, as well as advantages and disadvantages of ADR. Connection between Australian Courts and ADR Processes For the past twenty years, Australian courts have resorted to use of ADR to address the problem of backlog of cases. However, its use is limited to resolution of civil cases, particularly family and commercial matters. According to Sourdin (2004), the most notable feature in application of ADR in Australian courts regards the various forms of program and referral processes. Almost all courts dealing with family and commercial law encourage individuals to a dispute to utilize ADR processes to resolve their disputes out of the court. Some courts, like those for family disputes, have well founded policies to offer ADR services and to refer disputing individuals to other providers of ADR. Others seem to lack any formalized policies to guide use of the ADR processes. Moreover, various court personnel, including the staff, magistrates, judges, and judicial registrars, can conduct the processes. ADR did not find wide application in settling commercial disputes until the establishment of the Australian Commercial Disputes Center Limited (ACDC) in 1986, which up-to-date remains the leading provider of ADR services for commercial disputes. Among others, ACDC offers various dispute resolution services to assist businesses deal with their commercial issues efficiently and cost-effectively. The primary goal of ACDC remains to offer dispute resolution mechanisms short of court proceedings to help commercial entities preserve their good relationships, which otherwise may be impaired by the expensive and prolonged judicial litigation. Regardless of the ADR process used in such cases, an impartial third party assists parties to a dispute to reach to an amicable solution that not only satisfies interests of every party, but that also fosters the good business relationship that existed between the parties prior to the dispute. Although ACDC supports various ADR methods, Newton (2002) argues most parties to commercial disputes do not prefer arbitration, but “mediation and other ADR processes because of their speed and cost-effectiveness” (p.232). In addition, the association limits its dispute resolution services to all commercial issues, except for those related to industrial relations. As reflected in Family Law Act of 1975, ADR remains the primary means of dispute management in all family courts in Australia. Judges and juries of these courts receive special training to assist disputing parties settle their differences short of courtroom trials (Brassil, 2007, p.148). ADR processes, particularly mediation and conciliation, in this case are applied to resolve family matters, such as custodian of children, divorce, and sharing of family properties. Although majority of the issues are settled through these processes, the act authorizes judges to adjudicate on cases in which the parties fail to reach into an agreement. Some of the most common methods of ADR applied in the courts include mediation, arbitration, conciliation, and negotiation, among many others. Courts may refer parties to any one of these processes at any phase of the trial process, even before the claimant files a formal complainant to the courts. The courts should follow well-established criteria in referring parties to particular forms of ADR. However, as Sourdin (2004) notes, Australian courts rarely apply criteria to match dispute with the best process, or to determine cases that should be referred to ADR processes. Despite lack of formal referral criteria, most of the courts seem to consider various factors before identifying whether or not to refer disputes to ADR. These factors, among others, include consent of the parties, the extent of relationship between the disputing parties, and interest of the society. Common ADR Processes Applied in Australian Courts Negotiation It refers to a method by which more than one individual discuss or communicate in a bid to settle a dispute. It varies depending on the situation or the settings in which it occurs, which implies that disputing parties can utilize the method with or without formal procedures to follow. In many contexts, including its use in courts in Australia, negotiation is not used mainly as an ADR process, but rather as a means to facilitate use of other ADR processes. According to King (2009), Australian courts interpret or use the method in three distinct forms: “simple bilateral, indirect, and facilitated negotiation” (p.102). In the first form, courts encourage individuals to a dispute to communicate or engage in discussion with each other to try to solve their issues without an agent or representation. In indirect negotiation, the disputing individuals use agents (for instance, lawyers) to determine matters involved in the dispute, come up with options and various ways to solve the matters, as well as engage on negotiation to solve the issues on behalf of their clients. In facilitated negotiation, the parties engage a facilitator after they identify the problems that need concession. As such, the role of the facilitator remains only to assist them to reach to an agreement. However, it is not widely used as an ADR process because it usually ends with outcomes that resemble determination in judicial proceedings. Mediation This refers to some form of non-binding and assisted ADR process. It includes utilization of mediators trained on how to use both facilitation and negotiation to help disputing parties reach to an amicable resolution. The most effective mediators require knowledge of various disciplines, particularly those related to social interactions, sources of problems, and resolution of such problems. In the Australian context, mediation has been the most widely used ADR method to solve family disputes, and is becoming the best method to settle commercial disputes. Its effectiveness lies on its ability to assist parties to reach to a voluntary and long-lasting solution. In addition, both parties to the dispute represent themselves to the mediation process, with every one having equal authority to define agreement conditions. Typically, the process starts with presence of the parties and introduction of mediator and the process to both parties (Atlas, Huber, & Trachte-Huber, 2000, p.6). The mediator then takes time to explain differences between mediation and other processes of ADR. He or she should explain to the parties his or her role in the process, which involves facilitating mediation impartially and fairly. Afterwards, the mediator hears facts regarding the case from the two parties, encouraging every party to hear the other side’s part of the story. The mediator then separates the individuals and serves as the communication link between them. This is meant to enable the moderator to engage every party in a private session, intended to make him or her get all the required facts needed to assist the parties reach to a realistic agreement. Information given in these private sessions remains confidential, even in court trials in case the mediator fails to resolve the dispute. Through the question and response sessions with the mediator, the parties are expected to come up with ways and agree to the best way to resolve the issue at hand. One of the significant advantages of mediation as an ADR process includes the non-binding nature of the resulting agreement, which implies no legislation or rule of law limits the results of the agreement. Conciliation Although in many other nations conciliation and mediation means the same process, courts in Australia interpret conciliation as a completely different ADR process to mediation. In Australian context, conciliation refers to a method whereby disputing parties attempt to solve the underlying issues with the help of a conciliator. The conciliator participates in the overall process, right from the identification of the matters in the dispute to the last phase of determining settlement for the dispute. However, he or she does not determine the outcome of the case for the parties, but rather plays role of advising or giving expert opinion about the best way to resolve the issues. In contrast to a mediator, conciliator must have expertise on the discipline in which the dispute falls. Although not applied consistently, its use in Australian courts dates back in early 1990s as reflected in the constitution. The anti-discrimination board in New South Wales used the process extensively in 1970s to resolve disputes related to the Anti-Discrimination Act of 1977. Its use today varies from one court to another. Besides its utilization to settle family and commercial disputes, it is also widely used to resolve disputes related to health and elderly-care matters (King, 2009). Arbitration The process remains one of most widely used and oldest process in the history of ADR. While some courts argue that the process nearly looks like court trials, others claim that it does not fall under ADR processes, but under adversarial dispute resolution methods. This claim reflects in description of the process, which involves both parties presenting their issues and facts to an impartial third party, popularly referred as the arbitrator, who then determines the outcome of the dispute. The major difference between litigation and conciliation is that the former requires use of legal justice, while the latter applies natural fairness. In contrast to mediation, the determination by the arbitrator binds the two parties to the dispute (Atlas et al., 2000). In comparison to conciliation, the process has been in use in Australian courts since the passage of the constitution in 1901. During this time, it was primarily applied for resolving disputes involving industries in different states. However, various legislations passed afterwards extended application of the process to include other areas of law. One such area was the commercial disputes, where various uniform arbitration acts enacted in different states encouraged courts to refer particular cases to determination through arbitration. In a bid to harmonize the act with the international arbitration acts, federal and state courts later began using the process to settle disputes involving international trade matters. In addition, usage of the process to settle construction disputes has decline over time. It is rarely used today to settle such cases because of the high costs involved in determining settlement. Advantages and Disadvantages of ADR Advantages Besides saving time and costs, ADR provides other benefits, such as offering focus on key matters, provision of privacy to resolution process and settlement opportunities, as well as it is flexible (Newton, 2002). ADR greatly reduces the cost of settling disputes by reducing legal fees associated with court proceedings. In properly implement ADR processes, noteworthy cost reductions occur from reduction in expenses of lawyers, support staff, and fees involved in filing cases. It also helps disputing parties to resolve their disputes in time. The philosophy hinges on the joint efforts of individuals to a dispute toward an agreeable settlement. Therefore, by settling the case through ADR process, they work jointly to avoid backlog in the courtroom, which makes litigation take prolonged duration before determination of cases. It offers privacy to the parties because of the nature of the resolution process. All ADR methods usually happed in private, with presence of only the parties to the dispute and facilitator. Therefore, the issues and facts discussed, as well as the outcome of the cases, remains confidential. Moreover, the information’s confidentially remains even if the case proceeds to the court, in case the parties fail to settle the dispute out of the court. Unlike court trials, ADR stands in a better position to offer a determination that effectively addresses the gravity of the dispute. This is because it focuses only on the key facts involving the dispute, implying that one party, with the help of a facilitator, stands in a position to hear and understand the other party’s side of the story (King, 2009, p.243). The process is also flexible, meaning that parties to a dispute can engage in ADR at any phase of litigation. ADR provides various alternative settlements for the parties to choose the one that best resolves the dispute amicably. Unlike court trials where settlement is either fine and/or punitive, ADR gives the parties an opportunity to come up with various applicable solutions, which they then discuss and choose the one that satisfies every party equally. Disadvantages One of the limitations of ADR regards mischief and dishonesty between the parties. One or both parties to a dispute may accept to take part in the processes only to receive some insight about the other party’s side of the issues, not aiming to participate in good faith. Thus, it is usually good for each party to evaluate the other ones’ motive before deciding to use ADR for dispute resolution. Another potential drawback for an individual or business in ADR regards any tactical issue that may arise in successive litigation due to that individual’s disclosure of facts during the process. Although the law prohibits use of such disclosure in courts of law, the use of this possible downside should be evaluated in respect to the fact that the information may be revealed in any instance, particularly if investigation process will call for disclosure, or in the event of surprise disclosure in court trials. In addition, ADR prevents establishment of precedent for future disputes because the process occurs privately. In ADR processes, there exists a possibility of power disparity between the disputing parties. Reasonable and effective ADR entirely depends on impartial bargaining authority between the parties. However, this is not always true because one party may stand in a better position to defend or present falsehoods in the discussions, especially in cases of family and commercial disputes. Other limitations include likelihood of violation of fundamental rights because the processes lack scrutiny by courts of law and failure to offer settlement that matches gravity of the dispute (Brassil, 2007). Conclusion For the past twenty years, Australian courts have resorted to use of ADR to address the problem of backlog of cases. However, its use is limited to resolution of civil cases, particularly family and commercial matters. ADR did not find wide application in settling commercial disputes until the establishment of the Australian Commercial Disputes Center Limited (ACDC) in 1986, which up-to-date remains the leading provider of ADR services for commercial disputes. Some of the most common methods of ADR applied in the courts include mediation, arbitration, conciliation, and negotiation, among many others. In many contexts, including its use in courts in Australia, negotiation is not used mainly as an ADR process, but rather as a means to facilitate use of other ADR processes. Mediation remains the most widely used ADR method to solve family disputes, and is becoming the best method to settle commercial disputes. In Australian courts, conciliation refers to a method whereby disputing parties attempt to solve the underlying issues with the help of a conciliator. In comparison to conciliation, arbitration has been in use in Australian courts since the passage of the constitution in 1901. Besides saving time and costs, ADR provides other benefits, such as offering focus on key matters, provision of privacy to resolution process and settlement opportunities, as well as it is flexible. However, one or both parties to a dispute may accept to take part in the processes only to receive some insight about the other party’s side of the issues, not aiming to participate in good faith. References Atlas, N.F., Huber, S.K., & Trachte-Huber, E.W. (2000). Alternative dispute resolution: The litigator’s handbook. Chicago, IL: American Bar Association. Australian Law Reform Commission (ALRC) (2010). 44. New exemptions or exceptions: Alternative dispute resolution bodies. Retrieved from http://www.alrc.gov.au/publications/44.%20New%20Exemptions%20or%20Exceptions/alternative-dispute-resolution-bodies Brassil, B. (2007). Excel HSC legal studies. Glebe: Pascal Press. King, M.S. (2009). Non-adversarial justice. Annandale: Federation Press. Lamb, A., & Littrich, J. (2007). Lawyers in Australia. Annandale: Federation Press. Newton, D.A. (2002). Alternative dispute resolution in Australia. In M.K. Staff (Eds.), A handbook of dispute resolution: ADR in action (pp. 231-146). London: Routledge. Sourdin, T. (2004). Alternative dispute resolution and the courts. Annandale: Federation Press. Read More