Alternative Dispute Resolution
Alternative Dispute Resolution is a process in which you have the opportunity to reach an agreement without the need to go to court. By making your own decision regarding the dispute you retain control of the outcome. Experience shows that as the parties are involved in reaching a resolution it improves the chances that the agreement will continue and will be complied with.
The benefits of alternative dispute resolution processes are detailed below:
Continuing business and relationships
By utilising an alternative dispute resolution mechanism the parties are able to control the result to a greater degree and will generally be more satisfied with the outcome. By coming to a collaborative resolution it is more likely that the parties are able to retain their interests and preserve business and personal relationships.
Time saving
A mediation or other alternative dispute resolution process can be set up in a relatively short amount of time, unlike Court proceedings where there may be a lengthy period of time before the matter is able to be heard in Court.
Costs
The costs involved in taking a matter to a Court hearing can be extremely high. The costs for mediation or similar dispute resolution mechanisms are generally less by comparison.
Greater range of solutions
By undertaking a collaborative process, as in mediation, the parties are able to control the issues in dispute and can come to a more creative solution than those which may be imposed by a Court.
Confidentiality
Court hearings are in most cases open to the public. As mediation is conducted 'behind closed doors' the issues raised and the settlement can be kept confidential.
Less formal requirements
In attending mediation or other alternative dispute resolution processes there is no need to comply with formal court proceeding rules and regulations. The relatively informal processes often provide an effective mechanism for discussing and resolving disputes.
Comply with contract or agreement requirement
Some contracts or agreements such as employment contracts may provide that mediation is to be the first step in resolving a dispute or grievance. We are able to advise you on creating a contract/agreement or entering a mediation or alternative dispute resolution clause into your contract/agreement where appropriate.
There are several different processes which make up alternative dispute resolution, each of which is explained below.
Mediation
Following the introduction of the new Civil Procedure Act 2010 (Vic) there is an increased emphasis on mediation being the first step in resolving disputes. In family law matters relating to children it is a requirement in most cases for parties to attend mediation before court proceedings can be commenced. The Court generally has the power to refer a matter to mediation where appropriate.
Mediation involves a neutral third party mediator assisting the parties to identify the issues in dispute, develop options and consider alternatives to attempt to reach an agreement. The mediator has no advisory or determinative role in regards to the context or content of the dispute or the outcome. The role of the mediator is to facilitate discussion between the parties.
If an agreement is reached, it is not binding on the parties. However if you want to make the agreement binding we can prepare and file consent orders with the court to enforce the agreement.
If an agreement is not reached the matter can proceed to a hearing, and the parties still have the opportunity to reach an agreement at any stage prior to the hearing.
Discussions in mediation are on a without prejudice basis, therefore if the parties are unable to resolve the matter at mediation one party will not be disadvantaged by the other party informing the court of settlement offers. Mediation may not settle a dispute in the first instance, however in participating in a mediation parties may be able to narrow the issues in dispute.
Arbitration
Arbitration is a process in which parties refer the dispute to an independent third party arbitrator for determination. Arbitration could be seen as a private court case, where instead of a judge you have an arbitrator. It is possible in some cases to select an arbitrator with particular expertise and experience in the area of the dispute. The procedure in arbitration is similar to litigation and the rules of evidence apply.
Where an arbitrator decides a case and hands down a decision it will be binding and final, therefore the parties will be bound by the arbitrator's decision.
Conciliation
Conciliation is a process in which parties to a dispute are assisted by a neutral third party conciliator to identify the disputed issues, develop options and consider alternatives to attempt to reach an agreement.
The conciliator has an advisory role, not a determinative role as in arbitration. The conciliator orientates the disputing parties to the realities of the dispute and offers expert advice and assistance to aid parties in making informed choices as to a resolution.
If you would like further advice on how the alternative dispute resolution processes work or how we can assist you in participating in a mediation, arbitration or conciliation please contact our office.
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