Alternative Dispute Resolution

Question 1

What are the two types of ADR?

Answer 1

Direct party control and third party intervention

Question 2

What are some examples of direct party control?

Answer 2

Self-help, abandon the claim, concede the claim, reach consensus - mutual agreement

Question 3

What is self help? (ADR)

Answer 3

To take action yourself without any input from other party. Be careful - could be unlawful or aggravate the dispute.

Question 4

What is an example of self help?

Answer 4

Cut the branches down and throw over fence, smash noisy music system

Question 5

What does it mean to abandon a claim?

Answer 5

To walk away from a dispute without receiving anything, when you might feel you have a valid claim.

Question 6

What is an example of abandonment?

Answer 6

If an uninsured driver caused damage to your car, you might decide to not pursue a claim

Question 7

Is abandonment costly?

Answer 7

Abandonment is cheap and immediate because you will not incur any legal costs. You may effectively lose out by being out of pocket for any repairs.

Question 8

Is abandonment legally binding?

Answer 8

No, so you can choose to pursue a claim at a later date.

Question 9

What does it mean to concede a claim?

Answer 9

To acquiesce to the other party’s claim

Question 10

What is an example of concession?

Answer 10

you might agree to pay for the full cost of the repair or replacement of damaged property

Question 11

Is concession costly?

Answer 11

Concession is cheap (depending on the specifics of the dispute), because there are no legal costs. You may be out of pocket, but these costs are known and may end up being significantly less than if the claim was disputed

Question 12

What is consensus or mutual agreement?

Answer 12

Two parties may be able to come to consensus or mutual agreement, without the need for third party intervention.

Question 13

What is an example of consensus?

Answer 13

Two neighbours might agree to split the cost of the removal of a tree sitting on their shared boundary

Question 14

Is consensus cheap?

Answer 14

Consensus is cheap and immediate.

Question 15

Is consensus legally binding?

Answer 15

No which may cause problems if one of the parties changes their mind.

Question 16

What are some examples of third party intervention?

Answer 16

mediation, conciliation and arbitration

Question 17

What is mediation?

Answer 17

When a mediator helps the disputing parties come to an agreement. A third party will help the disputing parties present their perspective and listen to the other, with a view to reaching an agreement both parties can tolerate.

Question 18

Is mediation cheap?

Answer 18

Mediation is cheap and quick

Question 19

Is mediation likely to be adhered to?

Answer 19

Yes as both parties have been involved without the influence of legal representation. However, suggestions made by the mediator are not legally binding. There is also the potential for some parties to feel intimidated and, as a result, concede more than they are actually comfortable with.

Question 20

What is conciliation?

Answer 20

A more formal method of dispute resolution where parties to the dispute must attend. A conference is convened by a conciliator who is actively involved in proceedings.

Question 21

Is conciliation legally binding?

Answer 21

No, but any agreed decision is usually registered by the court or tribunal to have force of law

Question 22

Where else is the method of conciliation used?

Answer 22

Pre-trial conferences heard before masters of superior courts use this method to attempt to achieve out-of-court settlements. This process is used to attempt resolution of industrial or equal opportunity matters before arbitration or bringing the matter to a tribunal.

Question 23

What is arbitration?

Answer 23

a more formal way of resolving a dispute without trial but with the help of a third-party. While arbitration is not a trial, it is also not strictly a method of ADR, as it involves a formal adjudicating body. Parties to a dispute, must agree to arbitration and are bound to comply with the arbitrator’s decision

Question 24

What are the two types of arbitration?

Answer 24

It can be conducted in two ways: institutionalised arbitration and independent arbitration.

Question 25

What is institutionalised arbitration?

Answer 25

Set out in legislation. It is a formal procedure, and the decision of the arbitrator is legally enforceable. Arbitration conferences are conducted by government-appointed officers, particularly by registrars and commissioners in the Industrial Relations Commission to resolve industrial disputes

Question 26

What is independent arbitration?

Answer 26

most formal method of dispute resolution without trial. The parties must agree to go to arbitration as well as to comply with the arbitrator’s decision. Once agreement is reached to take a matter to independent arbitration, attendance is compulsory. The arbitrator takes a very active role in the proceedings; they can question the parties, call witnesses and examine evidence. Any decision reached is formalised in writing. Some decisions can be registered at courts to give them specific legal standing.

Less formal than court proceedings, relatively inexpensive, and the parties can be involved in deciding who the arbitrator will be and when and where the proceedings will be conducted. The method is employed by businesses in contractual disputes. For example, contracts in the building industry between builders and sub-contractors can include a provision in them to have any dispute resolved by independent arbitration.

Like any other matter, the courts remain the final arbiters of a dispute if a party appeals the decision of the arbitrator. Appeals are usually only possible on process rather than on substance

Question 27

What are the benefits of ADR?

Answer 27

• it is usually faster and less costly
  people have a chance to tell their story as they see it
• it is more flexible and responsive to the individual needs of the people involved
• it is more informal
• the parties’ involvement in the process creates greater commitment to the result so that compliance is more likely
• the confidential nature of the process
• Alternative Dispute Resolution is more likely to preserve goodwill or at least not escalate the conflict, which is especially important in situations where there is a continuing relationship – e.g. neighbors, friends, relatives