Legal Issues and ADR

Contributed by Margaret Halsmith and current to 1 September 2005

Legislation or contractual arrangements give rise to differing legal rights and obligations in relation to ADR.

Participation in ADR may be voluntary or mandatory. People may agree to use ADR when a dispute arises. Alternatively, a contract, code of practice or set of rules may require parties to use ADR. In some cases, a court may direct parties to use ADR.

In some situations, the outcomes of ADR processes may be binding and enforceable in a court of law. For example, an arbitration award may have the same effect as a court order. In other situations, the participants may need to take further steps before the outcome of an ADR process can be enforced.

Legislation or contractual arrangements may also provide legal protection for the parties or for the ADR practitioner. For example, the matters discussed in some ADR processes may be confidential, but, in other processes, they may be used in a later court hearing. In some circumstances, ADR practitioners may be immune from civil liability or prosecution.