Conflict arises in many situations due to various factors, circumstances, culture or a misalignment in approaches or ideas.

Alternative Dispute Resolution (‘ADR)

ADR is a term used to describe the various processes that people use to manage, resolve, or reach agreements. It may also assist in determining disputes. The term covers processes such as –

1.Negotiation

Negotiation is a process where the parties (without assistance of others or the court system) embark upon a dialogue to reach a mutually acceptable compromise.

2.Mediation

Mediation is a facilitative process involving the assistance of an impartial third party (the mediator) to help the parties to reach a potential agreement on issues or an agreed solution.

The mediator has no authority to make any decisions that are binding on the parties.

Mediation can be entered into voluntary except for when it is referred by the Courts.

Mediation can be lawyer-assisted as a pre-litigation phase which usually privately organised by the parties and their legal representatives. When mediation is referred by the Courts or otherwise referred to as ‘Court Ordered Mediation’ the courts can order that parties attend a mediation when court proceedings have commenced.

3.Conciliation

Conciliation is a similar process to mediation however, the conciliator is often seen as more of an interventionist as the conciliator can contribute their own views, opinion or options for settlement during the conciliation process.

The conciliator is different to a mediator in which a conciliator is an officer or member of a Court/Tribunal.

4.Expert Determination

Expert Determination can involve Expert Reporting and or Case Appraisal.

Expert Reporting – This involves an expert being jointly agreed/appointed by the parties. The expert’s advice is independent to provide answers to specific questions on the impact of specific issues or likely outcome of a dispute. An expert’s written report provides their opinion with their specialised knowledge on issues within the proceeding or revising another expert’s report about issues in dispute.

Case Appraisal – This involves a third party to assist the parties to resolve their dispute by providing a non-binding opinion on the likely outcome if the matter proceeded to Court. The third party is generally a case-appraiser who is an appointed court officer or tribunal member. The case-appraiser’s opinion is based on facts, the law, and the relative positions of the parties after investigating the dispute.

5.Arbitration

The parties present arguments and evidence to an arbitrator who has decisive power. Arbitration is useful where the subject matter is highly technical or where the parties seek greater confidentiality than in Court.

Arbitration can be voluntary, ordered by the Court or required as part of a contract (“arbitration clause”). It is commonly used when mediation or conciliation have failed; if parties want a final decision to be made confidentiality; or if special expertise is needed.

The overall purpose of ADR is –

1. To offer and provide choices to those in dispute on how they might proceed to resolve the disputes; and

2. To support the Court System in resolving disputes efficiently and in a cost-effective way.

ADR is a process that should be used prior to proceeding to Litigation. A lawyer can assist with navigating through the most appropriate ADR, attend negotiations, mediations and be a representative to put your best case forward without the emotional aspects.

Litigation should be used as a last resort when the ADR process has been exhausted. ADR are simply additions to litigation and is not intended to replace litigation.

Kelly & Chapman Lawyers are experienced in provided professional advice on dispute resolutions to navigate your circumstances. We can assist in representations at mediation, throughout other ADR processes, and beyond the ADR process.

If you have any questions or need assistance with your matter, we are here to help. Get in touch with us today on (03) 9557 2915 or by email: [email protected]