A DISPUTE is broadly defined as a disagreement of some kind. DISPUTE RESOLUTION therefore describes the process undertaken to address this disagreement, and arrive at an outcome that ideally addresses the dispute fairly and effectively.
In many cases, it is not in the best interest of some or all of the parties to a dispute to bring the matter before a Court. In Australia, this does not limit our ability to reach Dispute Resolution – in fact, it broadens the possibilities available for getting the best possible outcome, without the added stress (or often, costs) associated with the Courtroom.
Alternative Dispute Resolution
The process of reaching a resolution without litigating (or ‘going to Court’) is widely popular in Australia, and we call it ALTERNATIVE DISPUTE RESOLUTION.
While many view the commencement of legal action against someone as ‘taking them to Court’ (and this is not always untrue), there is actually an array of pathways to Alternative Dispute Resolution available to those who find themselves entangled in the law. Some of the more fundamental processes of alternative dispute resolution are demonstrated in the following linear spectrum, which also provides a map to understanding the layout of this article:
- Conflict Avoidance;
- Negotiation;
- Mediation;
- Conciliation;
- Case Appraisal;
- Arbitration; and
- Litigation (going to Court).
The Processes
Broadly speaking, there are three PROCESSES to select from when considering which Alternative Dispute Resolution pathway is best for you: Facilitative Processes; Advisory Processes; and Determinative Processes.
The Facilitative Processes of Alternative Dispute Resolution include 1. Conflict Avoidance; 2. Negotiation; and 3. Mediation.
The Advisory Processes of Alternative Dispute Resolution include 4. Conciliation; and 5. Case Appraisal.
The Determinative Processes of Alternative Dispute Resolution include 6. Arbitration; and 7. Litigation.
Why Use Alternative Dispute Resolution
It is often the case that, while involved in a legal dispute, your sole focus is on being successful. However, there are many other factors that are often just as important to consider: such as the costs of the process, how long it will take, the stress it may cause on you, how much control you have of the outcome, and/or how adversarial the process is.
These other factors are often the things that change depending on which alternative dispute resolution process you are involved in. The above-described spectrum can be viewed so that as you move down from 1. Conflict Avoidance towards 7. Litigation, these factors become more strenuous. The closer you move towards litigation; the more costly, time consuming, formal, rigorous, stressful, uncontrollable, and adversarial the processes become.
As such, if you have the opportunity to choose the platform in which your dispute is resolved, it is essential you consider all aspects of the matter and what you ultimately wish to achieve from the process.
EXAMPLE
It may be more commercial for you to attempt negotiations with an opposing party before resorting to the involvement of a third party such as a mediator or arbitrator. However, in some circumstances it is important to strike hard and quick by commencing litigation.
Even if you are set on resolving your matter through litigation, you may find that you have no choice but to engage in Alternative Dispute Resolution.
In some cases, alternative dispute resolution is mandatory and is not chosen by the parties.
EXAMPLE
Sometimes, a Court specifically will specifically order the parties to participate in alternative dispute resolution prior to continuing litigation.
Furthermore, alternative dispute resolution is often legislatively required before the matter can be heard before the court, such is the case in family law matters in which the parties are required to first participate in mediation. In these circumstances, it is still important to have an understanding of the alternative dispute resolution spectrum and what each of the three Processes entails.
Facilitative Process: Conflict Avoidance
The act of CONFLICT AVOIDANCE, or ‘walking away’, sometimes is the best course of action; and is often advisable in matters involving small amounts of money or large amounts of hassle.
Conflict Avoidance involves one or both of the parties simply resolving the matter at hand by leaving it be or facilitating its immediate resolution (such as perhaps paying an amount to a claimant).
Facilitative Process: Negotiation
NEGOTIATION is the process in which the parties to a dispute communicate and attempt to resolve the matter by reaching an agreed outcome.
Negotiations can be held directly in a single sitting or indirectly in which the parties correspond usually over email/letter communications and often with the help of a lawyer. In Negotiations, the parties often must compromise aspects of what they originally sought at the beginning of the process.
Apart from Conflict Avoidance, Negotiation is almost always the cheapest option of alternative dispute resolution as it does not require the intervention of a third party.
Facilitative Process: Mediation
MEDIATION is very similar to direct Negotiation (held often in single sittings) except for the involvement of a Mediator.
A Mediator ordinarily does not assess or evaluate the matter or provide advice on the merits, rather they will act as a guide to facilitate a cooperative and effective agreement between the parties. A Mediator is chosen by the parties and does not favour a particular side of the dispute. Mediation is often a very good process to quickly and cheaply resolve matters that are complex, that involve more than two parties, and those in which the parties are particularly adversarial.
Parties will have to pay the Mediator’s fees to prepare for and attend the Mediation (though this is ordinarily shared amongst the parties).
Advisory Process: Conciliation
CONCILIATION and Mediation are very comparable at first glance, except that the third party Conciliator will often be more forceful than a Mediator in their assistance in a dispute.
A Conciliator will also, in addition to encouraging the parties to reach an agreement, provide their advice about the prospects of the matter and make suggestions for potential settlement terms.
Advisory Process: Case Appraisal
During a CASE APPRAISAL, a Case Appraiser will assess the merits of the matter and provide advice the possible outcomes of the matter. Additionally, a Case Appraiser will conclude how they believe the dispute would likely be resolved (and should be resolved) if it were to proceed to Arbitration or Litigation.
After the Case Appraiser’s conclusion, the parties elect whether they either agree with the conclusion; or whether they wish to continue to the Determinative Processes instead.
Determinative Process: Arbitration
Much like in a Case Appraisal, in an ARBITRATION the parties will prepare and present their arguments and evidence to an Arbitrator who will ultimately make a conclusion.
However, the key difference between Arbitration and Case Appraisal is that any decision of the arbitrator is legally enforceable and the parties must abide by it, or formally appeal it.
Determinative Process: Litigation
LITIGATION is the process that actually involves getting the matter heard in a Court.
The litigation process is significantly more rigorous than the Alternative Dispute Resolution pathways available, as parties are required to adhere to Orders and/or Directions which often stipulate strict time limits on preparing and filing materials. The procedure followed in any case is also subject to the Court’s procedures, the rules of evidence, and much more. Ultimately, litigation will involve the matter being determined by a Judge(s) who will provide their legally binding Decision(s).
