Alternative Dispute Resolution

Contributed by AditiSrinivas and current to January 2025

What is Alternative Dispute Resolution?

ADR is a broad term used to describe many conflict resolution processes. They all have a third party separate to the conflict who helps parties to explore their dispute.

Alternative dispute settlement methods

There are three basic alternative dispute settlement methods: mediation, conciliation and arbitration. The parties choose the process they want to use to resolve their dispute. The ADR practitioner manages the process in accordance with agreed rules of discussion.

Mediation

Mediation is an informal problem solving process for people in dispute. A third party who is independent to the dispute helps people come together to find ways to move forward from the conflict. Mediation is a voluntary process, that people engage in with a genuine intention of trying to resolve the dispute.

Mediation can help people:

• communicate with each other, exchange information and seek understanding
• identify, clarify and explore interests, issues and underlying needs
• generate and evaluate options
• negotiate and make decisions to resolve the dispute. Mediators help support parties to examine the issues in dispute, assess realistic outcomes, explore alternatives and find solutions.

Mediators:

• are neutral
• are non-judgmental
• make no determination or decisions- the parties involved make the decisions
• do not apportion blame, award costs or impose penalties
• do not give legal advice or perform a counselling role
• Mediation is particularly appropriate where a dispute involves complex issues or multiple parties, and where parties need to maintain an ongoing relationship, such as business colleagues, neighbours, family members, community groups, club members, employers and their staff.

The practices of co-mediation and shuttle mediation are common. Co-mediation places two mediators in each mediation session to enhance fairness, balance and quality outcomes. In shuttle mediation the parties are located in different rooms and the mediator(s) 'shuttle' between them conveying the parties' positions and offers of settlement. Shuttle mediation is often used when party/ies do not feel safe to engage directly or if there is a significant power imbalance between the parties.

Should all the parties agree, mediated agreements can be made legally enforceable after mediation. Parties can seek independent legal advice to discuss options.

Conciliation

This process has many similar goals as with mediation to resolve issues with the support of a neutral conciliator. Conciliation is applied where a legal right has been violated and conciliators support parties to find the optimal solution with reference to relevant rules and procedures. Conciliation is used mainly to deal with complaints. For example, the Human Rights and Equal Opportunity Commission and the NT Anti-Discrimination Commission use conciliation rather than mediation to resolve complaints (see Other areas where ADR is used).

The role played by the neutral third party is the main difference between mediation and conciliation. Conciliators are often expected to contribute their own views and opinions applicable to the violated rights during the conciliation process - mediators never do. Conciliators have a more directive role than mediators. In some instances the conciliator even has the power to issue a determination. Generally however, conciliation has more in common with mediation than arbitration (see Arbitration), in that the conciliator acts at 'arm's length', putting forward options or suggesting ways the matter can be settled. Parties still largely retain responsibility for resolving their own dispute.

Arbitration

Arbitration is the ADR mechanism that most closely resembles a court in that the arbitrator imposes a determination on the parties after discussion with them. The main difference between arbitration and adjudication (the system used by courts) is that in arbitration the parties voluntarily choose to be bound by the decision of the third party arbitrator.

The role of the arbitrator, sometimes known as 'an independent expert', differs from that of a judge in that it generally involves encouraging the parties to discuss the matter between themselves before imposing a decision. The selection of arbitrators is usually made on the basis of expertise in the subject matter of a dispute.

The way that an arbitrated dispute proceeds may vary according to the nature and complexity of the matter. In many cases there will be a court-style hearing; in others a determination is made on the basis of documentary submissions only. In contrast to litigation, parties are able to set their own agreed timetable, conduct their hearing in private and make use of simpler procedures with an arbitrator of their choice. Arbitration is used by the Conciliation and Arbitration Commission, which deals with industrial disputes, such as those over wages and conditions of employment (see Employment ).

In Australia, commercial arbitration has become the preferred procedure for parties who seek a binding determination of their dispute but don't want to go to court. It is a private and efficient method of dispute resolution. The result, known as the award, is usually enforceable in the same way as a court judgment. The Banking Ombudsman is an exception - although it uses arbitration to resolve disputes between a bank and its customers, the customer is not bound by the award, and can choose instead to take the matter through the courts (see Banking ).

Advantages and disadvantages

Litigation can be the most effective and appropriate way to resolve some disputes. An independent person (such as a Judge or Tribunal Member) make a decision based on the information parties have presented to them. Parties are then required to follow the decision made by the independent person. This process is particularly useful when there are urgent issues that need to be addressed and/or concerns that prevent parties from communicating in a safe way. Courts and Tribunals generally expect parties to have attempted some type of ADR before engaging in litigation. Parties can start in litigation and generally then engage in an ADR process/ vice versa. You can read about litigation options further in other chapters of the Law Handbook.

Some disputes are not adequately resolved through the court process, and can even be made worse by it. ADR offers the following advantages:

• it is faster and usually costs less
• it is more flexible and responsive to the parties' needs
• through discussion parties gain a better understanding of each other's perspective than is possible in the court process
• it is not concerned with fault, guilt or innocence and so allows parties to avoid the traps of blame and retribution, therefore making room for negotiation and a cooperative approach to problem-solving
• it is less formal and less stressful
• those who know most about the issues in dispute, that is the parties in dispute, control the discussion agenda
• because parties are involved in and have control over the outcome, they are more satisfied and therefore more likely to comply with negotiated terms of agreement
• the confidential nature of the process encourages frank disclosure and understanding
• where a continuing relationship between the parties is required, such as in tenancy and employment agreements, goodwill is more likely to be preserved
• a party dissatisfied with the outcome of an ADR process can generally still take the matter to court.

A criticism of mediation and other forms of ADR is that it focuses on settlement, which may result in one or both parties conceding some of their legal rights. Such results, if they occur, occur because the broader focus of the ADR negotiation process takes in the important underlying needs of parties, as well as their rights. Parties are always advised to seek legal advice (see The role of legal advice in ADR ) prior to signing off on their ADR-achieved outcome. If a party is unsatisfied with a negotiated outcome the dispute may be taken to court.

The role of legal advice in ADR

Where disputes are being resolved using ADR methods, it may still be appropriate to obtain legal advice to make an informed decision before committing to the process. In some cases legal advice is essential. It is important for parties to be aware of their legal rights before they start the ADR process so they can negotiate from an informed position about the best and worst outcomes that could be expected if they go to court.

Also, at any time during a negotiated ADR process, either party can suspend negotiations to obtain legal advice on a particular point.

Parties who are unsure about whether they have achieved a just and equitable outcome through ADR should seek legal advice before signing off on an agreement.

It is also important for parties to understand that an ADR practitioner usually cannot give legal advice.

Standards, accreditation and training

The Australian Mediator and Dispute Resolution Accreditation Standards (AMDRAS) is a scheme which provides a minimum level of standards for training and assessment for all mediators to ensure quality assurance, consistency and consumer protection. The Mediation Standards Board maintains the official list of accredited mediators. You can access the standards and list of accredited mediators here: Home - AMDRAS.

There are other mediator accreditation schemes that impose specialist requirements for particular fields for example, the family dispute resolution practitioner registration requirements under the Family Law Act 1975 (Cth). Please refer to the Family Law chapter for information about Family Dispute Resolution Practitioners.

Currently, various government and private organisations train, assess and register mediation practitioners. For example the Community Justice Centre (NT) provides training, while various universities, Law Societies and training Institutions offer training courses across Australia. The courses offered by these organisations, which typically run over five to ten days, are generally required to meet national accreditation standards. The Community Justice Centre (CJC) maintains a panel of accredited mediators, as legislated within the Community Justice Centre Act 2005 (NT). These mediators undergo regular professional development in order to maintain high standards.

ADR processes in the court system

In most kinds of civil litigation, courts apply a variety of pre-trial procedures to try to identify the underlying causes of the dispute and give parties the opportunity to settle by negotiation before going before a judge or magistrate. These procedures are severely time-constrained, usually controlled by the court official and not as comprehensive as ADR. A number of courts are in the process of making procedural changes to incorporate mediation and arbitration.

Local Court

The Local Court uses a number of ADR processes in its pre-trial procedures. At the point in proceedings after a defence is filed, a Local Court judicial officer may arrange for the parties to attend a pre-hearing conference [Local Court (Civil Procedure) Act 1989 (NT) r. 16]. If mediated, the dispute goes before a court registrar or a court-appointed external mediator. Any matter within the Local Court's civil jurisdiction can be referred to mediation. Lawyers are not necessarily required. The parties share external mediation costs equally. If parties reach agreement at a dispute resolution process, they must return to Court/ follow the Court process to explain the outcome and what they want to happen with their case. The Court will then decide how the matter ought to be determined.

Supreme Court

If the Court considers it appropriate, it can order a civil proceeding be referred to a settlement conference before an Associate Judge (r48.12) or mediation (r48.13) Supreme Court Rules 1987 (NT). The Court may fix the costs of mediation or order that the costs be shared equally r48.13 (11). You can find a list of the Supreme Court’s accredited mediators here: Lawyers | Supreme Court NT.

Federal Court

The Federal Court hears matters involving Federal law such as immigration, tax and bankruptcy. The court has developed some 'assisted dispute resolution' processes, also known as ADR. For instance the parties can request mediation, and the court can refer matters to arbitration, mediation or other ADR process with or without their consent ( Federal Court of Australia Act 1976 (Cth) s.53A). Mediations are usually conducted by court registrars. Where the mediation is successful, the agreement may be formalised. You can read more about the process here: Mediation (fedcourt.gov.au)

Dispute resolution in practice

Community Justice Centre services

The Community Justice Centre (CJC) provides mediation services to the community to help people resolve their own disputes without potentially costly legal action. The service is free, confidential, voluntary, timely and easy to use. The NT Community Justice Centre is legislated for within the Community Justice Centre Act 2005.

Mediation is a way of helping people settle a dispute without having to go to Court and commonly used in the following types of disputes:

• neighbourhood issues (noise, trees, fences, pets, drainage)
• between members of a club, committee or incorporated Association
• antisocial behaviour and visitors Mediation allows parties in dispute to have a say in the outcome and come up with their own solutions to the problem. It provides a way of settling a dispute without legal action. This means savings in time, legal fees, court costs and sustainable outcomes for you and the whole community. The Local Court may also refer matters to the CJC for mediation for example for Personal Violence Restraining Order matters.

For more information please contact the Community Justice Centre on 1800 000 473, email cjc@nt.gov.au or visit in person at 2B1 CASCOM Centre, Scaturchio Street Casuarina.

How mediations are conducted

Under the Community Justice Centre Act:

• mediations are conducted informally and with as few delays as possible
• the rules of evidence do not apply
• mediation sessions are conducted confidentially
• attendance and participation is voluntary - a person may withdraw from a mediation session at any time
• any agreement reached in a mediation session is not enforceable in any court or tribunal and described as a 'good faith agreement'
• as with judicial proceedings, there is privilege from action for defamation in mediation - that is, a person cannot be sued for defamation on the basis of evidence they give in the course of mediation
• evidence of anything said or any admission made in a mediation session also applies to any document used for the mediation, including documents sent to the Community Justice Centre
• mediators are bound by confidentiality
• information obtained in connection with a mediation session can only be disclosed in certain circumstances.

In Community Justice Centre mediations, one or two mediators work together to help people in dispute to reach their own agreement in a process described as facilitative mediation.

Each person gives their personal account without interruption. The parties' statements are then summarised by the mediators to help determine the main issues.

In the course of the mediation, the mediators generally have a private session with each of the parties. This helps them to explore settlement possibilities, and to decide whether there are advantages to be gained in continuing with the mediation.

How mediators are selected

All CJC mediators are accredited under The Australian Mediator and Dispute Resolution Accreditation Standards (AMDRAS). Where possible, the mediators in a particular case are chosen so that their skills, knowledge and experience can be matched and are acceptable to the parties to support an environment for negotiation.

Community languages and interpreters

The Community Justice Centre can provide interpreters when necessary.

Other areas where ADR is used

Disputes about workers compensation

An injured worker who has attempted to resolve a dispute and is dissatisfied with the outcome may apply to NT WorkSafe to have the dispute referred to mediation. Undertaking mediation is mandatory before taking any matter to the Work Health Court. NT Worksafe arrange for an independent mediators to be appointed to a matter. For detailed information about the dispute resolution process: Mediation process for workers compensation | NT WorkSafe

Complaints about discrimination and equal opportunity

Two organisations who handle complaints about discrimination and equal opportunity are: the NT Anti-Discrimination Commission and the Australian Human Rights Commission. Both organisations use ADR to deal with complaints. For information about these organisations and their processes see Discrimination and Human Rights .

Disputes about native title

ADR processes are used by the National Native Title Tribunal (NNTT), a Commonwealth tribunal that facilitates the making of agreements among indigenous people, governments, industry and others whose rights or interests may co-exist with native title rights and interests. The NNTT doesn't decide whether or not native title exists. One of its primary function is to mediate contested native title applications. Disputes are often complex and multi-party. Intra-indigenous issues are a dominant feature of the Tribunal's work.For further information about mediation: Future act mediation (nntt.gov.au).

If the application cannot be mediated to the stage of a determination agreed on by all the parties it must be lodged with the Federal Court for adjudication.

Conferences between victims and offenders

A conference is an ADR forum where people deal with wrongdoing and conflict. It involves a meeting, in a conference setting, between the victim of a crime and the person who committed that crime.

Conference participants in criminal matters include the victim, the offender, their supporters, the arresting police officer and the facilitator. Participants volunteer to discuss the harm resulting from the crime, how to repair the harm, and how to avoid/minimise further harm. The participants attempt to negotiate an agreement that might repair the harm. The facilitator acts like a mediator and guides the process without controlling or dictating.

Agreements reached at conferencing may be accepted by courts in substitution for court-imposed sanctions. Appropriate consenting offenders are either diverted to a conference by a court prior to sentence or by police prior to court. NT conferences only involve juvenile offenders at present. Conferences provide the community with an opportunity to become involved in the administration of justice. Their existence is recognised by authorities who recognise that court-imposed criminal sanctions do not always serve the best interests of victim, offender or community. Conferences are managed by the by the NT Police Diversion Unit and referred to convenors by Judges under the Youth Justice Act.

For more information about NT based services see VoCNT_Restorative-Justice-Conferencing_Information-for-Territorians_Fact-Sheet-1.pdf (victimsofcrime.org.au)

NT Civil and Administrative Appeals Tribunal

A Tribunal Member can refer any matter to a ‘compulsory conference’ under s107 of the Northern Territory Civil and Administrative Appeal Tribunal Act. The conference is conducted by a member appointed by NTCAT. For further information about this process: Form [ ] (nt.gov.au)

ADR organisations

The Community Justice Centre

The Community Justice Centre offers mediation for a range of conflict situations, for example:

• conflict between members of a club or association
• neighbourhood disputes over fences, pets, noise, trees or property damage
• conflicts that fall under the Personal Violence Restraining Orders Act 2016
• disputes between work colleagues or committee members
• disputes about money and debts
• interpersonal conflicts
• multi-party community disputes
• burial disputes
• commercial/business matters
• conflict among extended family

For more information please contact the Community Justice Centre on 1800 000 473, email cjc@nt.gov.au or visit in person at 2B1 CASCOM Centre, Scaturchio Street, Casuarina, Darwin. The CJC also has offices in Tenant Creek and Alice Springs.

Aboriginal Resource and Development Services

ARDS is an Indigenous corporation that has been operating for nearly fifty years; working with Indigenous communities, government agencies and other bodies in the Northern Territory and beyond to build understanding across cultures and bridge the gaps between mainstream services and Yolŋu communities.ARDS' dispute resolution service is based on a gurruṯu-centred approach to family violence and dispute resolution. This framework is based on several decades of cross-cultural practice and feedback from Yolŋu residents and leaders across north-east Arnhem Land. It is based on identifying the most appropriate person or people to support disputing parties through gurruṯu (Yolŋu kinship structures). Where appropriate, our Yolŋu-led approach is supported by appropriate Balanda (non-Indigenous) facilitation and mediation.

• ARDS dispute resolution work includes:
• Generalist mediation services;
• Restorative youth justice conferencing; and
• Family dispute resolution conferencing.

For more information please contact ARDS on (08) 8984 4174 or by email disputeresolution@ards.com.au.

Resolution Institute

Resolution Institute LEADR is a Sydney-based mediation training organisation. Its courses are designed for general application. It provides accredited mediators from its register for a fee. LEADR conducts training courses in Darwin and other interstate capitals, subject to demand. Contact details are:

Level 1 and 2 13-15 Bridge Street Sydney NSW 2000
Freecall: 1800 651 650
Web: https://www.resolution.institute

Mediation Institute

Mediation Institute provides training in dispute resolution skills throughout Australia and services services for accredited mediators. Contact details are:

Email: office@mediationinstitute.edu.au Call: 1300 781 533

Web: https://www.mediationinstitute.edu.au/

The Accord Group

The Accord Group is a group of Sydney-based mediation trainers that also operates in Darwin subject to demand. Their courses are oriented towards commercial mediation. Contact details are:

Address: Level 2, 370 Pitt Street, Sydney NSW 2000
Tel: 02 9264 9506
Fax: 02 9264 8268
Email: codedisputes@accordgroup.com.au
Web: www.accordgroup.com.au

Bond University

These universities offer full or part-time ADR courses. Contact details are:

Bond University
Gold Coast, QLD 4229
Tel: 07 5595 5000
Fax: 07 5572 6189
Email: information@bond.edu.au
Web: www.bond.edu.au

Private mediators

In the NT, various sole practitioners, partnerships and organisations offer private fee-for-service ADR services. The public can access the Mediation Standards Board website to check AMDRAS accreditation status.

Helpful books

• Your Guide to Dispute resolution, National Dispute Resolution Advisory Council (2012)
• Guideline for lawyers in Mediation. Law Council of Australia (2011)
• Guideline for parties in Mediation. Law Council of Australia (2011)
• AMDRAS Home - AMDRAS
• Alternative dispute resolution | Attorney-General's Department (ag.gov.au)
• Mediation: Principles, Process, Practice, Boulle L.(2nd ed, Butterworths, 2005)
• The Fundamentals of Family Mediation, Haynes J. and Charlesworth S. (Federation Press, 1996)