Alternative Dispute Resolution

Question 1

What is Alternative Dispute Resolution

Answer 1

Alternative Dispute Resolution (ADR) is a means to resolve a dispute other than via the use of the traditional adversarial system (courts and tribunals).

Question 2

Types of ADR

Answer 2

• Negotiation
• Mediation
• Arbitration
• Conciliation
• Counseling

Question 3

Negotiation

Answer 3

Two parties discuss issues of concern in order to reach an agreeable decision. These decisions are not legally binding.

Question 4

Mediation

Answer 4

Qualified mediator facilitates discussion,ensures equal opportunity to present facts. Aims to maintain an ongoing relationship between parties. Decisions are not legally binding.

Question 5

Arbitration

Answer 5

Third party listens to the facts of the dispute. Arbitrator makes decisions on behalf of the parties. Decisions are legally binding.

Question 6

Conciliation

Answer 6

Third party makes suggestions as to how the conflict may be resolved. Conciliator usually has knowledge or expertise in the type of dispute. Decisions are not legally binding.

Question 7

Counseling

Answer 7

Counselor meets with groups of people, or many parties to resolve the disputes. Decisions are not legally binding.

Question 8

Ombudsman

Answer 8

The Commonwealth Ombudsman’s services are free. The Commonwealth Ombudsman has wide powers to investigate complaints about the administrative actions and decisions of Australian Government agencies to see if they are wrong, unlawful or discriminatory.

Question 9

Role of the Ombudsman

Answer 9

• Hears complaints regarding administrative actions of government authorities and departments. Individuals, organisations and government agencies can complain.
• Can carry out independent investigations. Can be written, oral, by phone or in person.
• Can recommend changes to administrative practices if unreasonable, unjust, oppressive or improperly discriminative.
• Can make decisions based on principles of what is accepted and fair and reasonable.
• It is the office of last resort.
• Free of charge

Question 10

Strengths of ADR

Answer 10

• Less costly than a court hearing
• Less formal and intimidating than a court hearing
• Less delay than a court hearing
• Parties are empowered to be involved in the
  resolution of their dispute.
• Not adversarial, seeks the best outcome for all parties
  involved. (Win/Win not Lose/Lose)

Question 11

Weaknesses of ADR

Answer 11

• Possible power imbalance between parties
• Third party may be biased
• No public forum
• No development of common law
• A resolution may not be reached, resulting in delayed
  court hearing anyway.
• Most decisions are not legally binding.

Question 12

Important Quotes 1.1

Answer 12

‘Justice is beyond the reach of ordinary Australians because they cannot afford the ‘nightmare’ of going to court.’ - Justice Micheal Kirby

Question 13

Important Quotes 1.2

Answer 13

‘The downside of the quickness of ADR over trial is the risk that the dispute may be resolved on the basis of inadequate facts and therefore produce an unfair result.’ - Hon. Peter Underwood.