Alternative dispute resolution

What is alternative dispute resolution?

Alternative dispute resolution (ADR) is the term used to describe methods outside of court proceedings which you can use to help resolve your legal problem.

The ADR methods provide a means for early resolution of new disputes. It also aids in quickly resolving lengthy disputes.

These dispute resolution methods can be built into agreements before disputes arise, so if a problem develops it can be sorted out quickly and at a lower cost.

Most importantly, with ADR, the solution is up to you.

When is ADR used?

ADR is a flexible way of sorting out disputes. It has already been used for everything from neighbour disputes over a fence, to divorce settlements, to multi-million dollar commercial contract disputes. 

Courts generally expect parties to participate in some form of ADR to try to resolve their legal disputes. ADR can be used at any time in the dispute, from the early stages before it goes to court, right up until the dispute is ready for trial.

What are the ADR methods?

• Mediation
• Arbitration 
• Expert Determination
• Conciliation
• Collaborative law

Things to know about ADR services

Most ADR practitioners charge an hourly rate. This rate varies depending on their experience as an ADR specialist, the area and complexity of the relevant law, and where they're based. Like any other service, you can approach an ADR practitioner to negotiate their hourly rate or a lump sum fee.

Things to consider when you are preparing for an ADR process:

• gaining an understanding of the specific process you are about to start
• identify your needs, rights and responsibilities
• prepare your opening statement
• think of different ways to achieve your desired goal
• consider how the other party will react and what their goals would be
• go into the process with an open mind, and
• be willing to negotiate and compromise.

For more complex problems, it is normal for a meeting to be held before the process actually starts, so you can set up a timetable for exchanging documents. The parties will be asked to sign an agreement before the ADR process starts.

When you have started the ADR process, remember that you need to state your case clearly. You also should make an effort to listen to the other side. If the dispute ends up in court, you probably won't be able to negotiate. Try to look for options that benefit you both, rather than trying to "win." Follow the directions given to you by the mediator or arbitrator. Finally, be willing to cooperate, and to reach an agreement.

Mediation

Mediation is a popular way of settling disputes without going to court. Mediation is when the people on both sides of the legal problem meet together with an independent third-party mediator. The mediator is there to guide you and provide structure to help both parties to reach an agreement and resolve the dispute.

The mediator doesn't make the decision, but they can write up the agreement that both parties have agreed on. These agreements aren't legally binding unless both parties sign a statement agreeing to make it legally binding.

Mediation is a good option to save time, legal fees and court costs for everyone involved, and the agreement can often be a win-win for both parties. In court, the judge has to interpret the meaning of a contract, no matter what either party wants, so mediation usually gives you more flexibility. However, it is often voluntary, so both parties first need to agree to come to mediation.

You don't need a solicitor for mediation, but you are welcome to have one with you if you prefer. Some people also prefer to have a solicitor look over the final agreement before they sign it.

Some courts and tribunals have compulsory dispute resolution procedures such as mediation. For example, the Family Court requires compulsory mediation in custody/parenting matters. The Queensland Civil Administration Tribunal (QCAT) can refer you to mediation, where you will go through a quick mediation (usually no more than 1 hour) to try and come to a solution. If you can't reach an agreement, then the matter will go to a QCAT hearing.

Arbitration

Arbitration is a legally binding process that happens outside of the courts. It is similar to mediation, because it is a much faster and more flexible option than going to court, but unlike in mediation, the arbitrator is the one who makes the decision, and it is legally binding.

Both parties in the dispute present their arguments and evidence to an independent third-party arbitrator, who acts as a judge and creates a binding determination, called an award. Arbitration can either be court ordered or voluntary. You don't need a solicitor for arbitration, but you might want to work with one, as the arbitrator's decision is legally binding.

Arbitration is suitable for:

• financial matters
• property settlements, and
• spousal maintenance

Expert Determination

Expert determination means the people involved in the dispute agree to have their problem resolved by an independent third party expert. The expert can be a solicitor, but it can also be somebody with technical knowledge like an accountant or engineer.

Commercial contracts can often include a clause that forces you to resolve any issues with expert determination, but it can also be a voluntary agreement. The expert's decision is legally binding on both parties.

The difference between arbitration and expert determination is that the Commercial Arbitration Act sets out the arbitrator and parties in dispute's rights and obligations. An expert determination depends on the contract between the parties.

Conciliation

If your legal problem is related to being discriminated against at work or by someone providing a service, conciliation could be a good option to resolve it. The conciliator can help you identify the problems with the other party and discuss how to settle the issue while providing expert advice. The conciliator can offer suggestions, and inform everyone of their legal rights and responsibilities, but they don't act as a judge, and don't make the decision.

Collaborative law

Collaborative law is usually used for family law disputes. It is when both parties and their solicitors make a written agreement to reach a settlement without the possible threat of eventually ending up in court. Everyone involved agrees to actively participate, negotiate, minimise any conflict, and not threaten litigation, to make the process easier and less stressful for both sides. Other experts can be involved, such as counsellors and therapists. The goal is to reach an agreement that is good for both parties (and their children). There should be no "winner" or "loser".

If the collaborative law agreement doesn't work and the parties decide to take the matter to court, the solicitors from both sides are not allowed to represent their clients any longer. This means the two parties would need to spend more time and money on hiring new solicitors, which can sometimes be enough motivation to see the collaborative law process through to the end.