Alternative Dispute Resolution (ADR) is provided for under the Civil Proceedings Act 2011 and encompasses a variety of methods which can result in a binding or non-binding agreement to resolve a legal problem, without having to engage in the costly and often stressful process of Court proceedings. Methods of ADR include:
- Mediation
- Arbitration
- Expert Determination
- Conciliation
- Collaborative Law
What are the benefits of ADR?
There are many benefits to participating in ADR, such as:
- Avoidance of lengthy, costly and stressful court proceedings;
- Allows parties to develop mutually acceptable outcomes;
- Greater flexibility in negotiations;
- Greater range of solutions available than that of Court proceedings.
Which method is best suited to my dispute?
To best determine which method is most suitable for your dispute, it’s important to consider the basis of your dispute, the parties involved, and what the desired outcome ultimately is. For example, you may wish to reach a resolution that can be legally binding on the parties (such as a building dispute), or you simply may wish to reach a resolution and move forward with life (such as a dispute with your neighbour).
Understanding the different methods available will better equip you to making the right selection for you:
Mediation
Mediation is a popular and highly effective way of resolving your dispute without having to go through the Court process. It’s overseen by an impartial third party, called a mediator whose role is to guide you through a structured process to assist in reaching a resolution. Participating in mediation can save significant time, legal fees and court costs for both parties. It also provides you with an opportunity to have your wishes taken into account, unlike Court proceedings where a Judge or Magistrate is bound to decide your matter based on the legal merits.
Key Takeaways for Mediation:
- It is a voluntary process;
- The Mediator will not make decisions for the parties or give advice;
- Parties may choose not to accept the agreement if they are unhappy with the terms reached;
- If you are unable to reach a resolution, you may pursue your matter through court proceedings.
Arbitration
Arbitration is a flexible and efficient means of solving disputes and is a process that will legally bind the parties. It is a process where each party presents their argument and evidence to an Arbitrator, whose role is to act as a decision maker, and create a binding determination (award).
Arbitration may be ordered by consent in matters where there are current proceedings before the Court, or if parties agree to attend Arbitration. Disputes which may be suited to Arbitration include financial matters, property settlements and spousal maintenance.
Expert Determination
Expert determination is a process where the parties agree to have their dispute resolved by an independent third party expert, such as an engineer, accountant, lawyer or valuer, depending on the issue for determination.
It is a process where the parties agree that the experts decision will be binding upon them, there is no right of appeal and only limited ways in which a party can seek to challenge the experts decision.
Conciliation
If your disputes involve discrimination in the workplace for example, or related to services, it is most likely that they will be best dealt with by conciliation. It is a process that assists parties identifying issues of dispute and allows the parties an opportunity to discuss possible terms of settlement whilst receiving assistance from the conciliator, who acts as a neutral third party, much like mediation.
Collaborative Law
A collaborative law approach requires both parties and their legal representatives to specifically agree in writing to reach a settlement without resorting to litigation. Its focus is on parties to actively participate, negotiate and minimise conflict in order to avoid going to court.
Whilst collaborative law may be used for commercial and civil areas, it’s primary purpose is the resolution of family law matters.
If you are interested in learning more about any of the above alternative dispute resolution options available to resolve your dispute, contact our litigation lawyers today. Klein Legal also offer mediation services and has a nationally accredited mediator who can assist in resolving your dispute. Contact us today to find out more.
This is general information only and does not constitute legal advice.
If you or someone you know would like more information or require advice about anything raised in this article, please contact us on (07) 5458 6855 or email mklein@kleinlegal.com.au