Knowledge Of Adr: A Critical Success Factor For Effective Dispute Resolution Initiative (original) (raw)

ALTERNATIVE DISPUTE RESOLUTION (ADR

Alternative Dispute resolution is the procedure for settling dispute without litigation (court room) such as arbitration, mediation or negotiation. ADR procedure are usually less costly and more expeditions. They are increasingly been utilized in dispute that would otherwise result including profiled labored disputes, divorce action and personal injury claims. IMPORTANCE OF ADR • One of the reasons parties may preferred ADR unlike adversarial litigation. ADR procedures are often collaborative and allows the parties to understand each other's portions • It allows the parties to come up with more creative solutions that a court may not be legally allow to impose. • It saves cost, stress, time and formality associated with going to court.

Maintaining and enhancing the integrity of ADR processes: From principles to practice through people

Social Science Research Network, 2011

Appendix 2.3-Views supporting statutory imposition of conduct obligations Appendix 2.4-Views opposing statutory imposition of conduct obligations Appendix 2.5-State and territory legislation prescribing conduct obligations in ADR Appendix 3.1-Examples of confidentiality clauses in mediation Appendix 3.2-State and territory legislation Appendix 4.1-Federal legislation Appendix 4.2-State and territory legislation Appendix 5.1-Federal legislation Appendix 5.2-State and territory legislation Appendix 5.3-Potential recommendations Appendix 5.4-Considerations relating to the conferral of immunity Appendix 5.5-Examples of immunity clauses Chapter 1: Introduction In this Report, the National Alternative Dispute Resolution Advisory Council (NADRAC) canvasses particular issues that support the integrity of alternative dispute resolution (ADR) processes, and that are identified in the Terms of Reference. These are: conduct obligations, rules about confidentiality and inadmissibility of communications within ADR processes, and immunity of ADR practitioners from being sued. The Report explains NADRAC's understanding of the breadth of the concept of integrity as it applies to ADR processes, canvasses the views of interested parties about the integrity of ADR processes and how this might best be protected, and makes recommendations about possible legislative intervention to further support the integrity of ADR processes in certain contexts. 1.1 Outline of Chapters Chapter 1: Introduction Chapter 1 sets out NADRAC's recommendations, provides definitions of terms used in this Report, and describes the background to the reference given by the Attorney-General, the Hon Robert McClelland MP. It canvasses recent developments across a range of Australian jurisdictions, and defines the scope of NADRAC's analysis. Chapter 1 also describes the underlying premises and guiding considerations that NADRAC used as a framework for developing recommendations to protect and preserve the integrity of ADR processes. Overarching themes-what is meant by 'integrity of ADR'? The Terms of Reference identify four particular elements that interact to support ADR processes that can be said to possess integrity. NADRAC members consider there to be two principal dimensions to the characteristic of integrity in this context. They are: • the reputation and credibility enjoyed by ADR as an effective mechanism for respectfully and constructively resolving disputes, together with the reputation and credibility enjoyed by ADR practitioners as being capable of assisting to effect such outcomes through effective communication. The elements specified in the Terms of Reference speak directly to this dimension of integrity, as they directly affect the regard in which the community will hold ADR and its practitioners. For example, if ADR practitioners-like practitioners of professions such as medicine or law-are generally trusted to keep confidences, and are accountable for misconduct, then ADR and its practitioners will continue to maintain a good reputation, and • the prominence which the practice of ADR generally affords to participants' self-determination and their opportunity for empowerment to work through and, if appropriate, resolve disputes with assistance of a third party. ADR practitioners can aspire to reflect this quality in guiding disputants, through processes, to resolutions that go beyond 'legal solutions' to solutions that may well reflect deeper interests of the disputants. ADR. While the differences in these two broad categories of ADR have influenced NADRAC's recommendations, it is necessary to be mindful that, in practice, the distinction between private and mandatory ADR may not be a 'bright line' distinction. Accordingly, Appendix 1.1 should be used as a reference to support an understanding of NADRAC's analysis in this Reference, rather than as an attempt to precisely or exhaustively fit a range of practices within either of the classifications. Chapter 2: Conduct obligations Conduct covers the behaviours and attitudes of those participating in ADR processes. There is currently no uniform federal legislation prescribing conduct obligations for disputants and their representatives in ADR processes, and little legislation prescribing the conduct of ADR practitioners. 3 This may adversely affect the value and perceived integrity of ADR. This Chapter canvasses whether it would be useful, to promote and preserve the integrity of ADR, to impose statutory conduct obligations on participants, their representatives, and ADR practitioners. Recommendations 2.6.1 Where such a requirement does not already exist, legislation should be introduced which requires participants (disputants and their representatives) in mandatory ADR processes to participate in those processes in good faith. 2.6.2 The legislation should define 'good faith' inclusively, and capture the concept of a genuine effort to abide by enumerated ADR principles. 2.6.3 The legislation should explicitly require ADR practitioners in mandatory ADR processes to support ADR participants to comply with conduct standards. 2.6.4 Participants in private ADR processes should not be required, through legislation, to adhere to any prescribed conduct standard. Instead, consensual adherence to appropriate conduct standards in private ADR should be encouraged in other ways, such as through codes of conduct, industry standards, and community education. 2.6.5 Consistent with recommendations 6.5 and 6.6 of NADRAC's 'Resolve to resolve' report, accreditation of ADR practitioners within the federal civil justice system should be encouraged by the federal government, and there should be professional codes of conduct developed in ADR areas where accreditation and standards have not yet been developed. 2.6.6 The federal government should encourage legal practitioners participating in ADR in the federal civil justice system to undertake further education and training about ADR. 2.6.7 The conduct of legal practitioners involved in ADR should be further promoted as part of ongoing reforms to the legal profession across Australia. 3 Other than some provisions imposing obligations of confidentiality. 4.7.1 In implementing the recommendations made in Chapter 3 of this Report, Parliament should also legislate to clarify the circumstances in which ADR communications occurring in, or for the purposes of, ADR required by federal legislation, or by an order of a federal court or tribunal, can be: • admitted into evidence in any proceedings before any court (whether the court is a federal, state or territory court), or • disclosed in any proceedings before any tribunal (whether the tribunal is a federal, state or territory tribunal). To some extent, implementing this Recommendation would, in the context of federally-mandated ADR, displace both s131 of the Evidence Act and s53B of the Federal Court Act. 4.7.2 The general rule should be that such ADR communications cannot be admitted or disclosed, as the case may be, without the consent of the disputants. 4.7.3 The legislation should, however, allow a court or tribunal to give leave to admit or disclose ADR communications, taking into account: • whether leave is sought to enable a party to protect a right or interest which is reflected in any exception to confidentiality recommended in Chapter 3 • the general public interest served by maintaining the confidentiality of the communications, and • whether admission or disclosure would serve the administration of justice. Admissibility and disclosure of other ADR communications before a federal court or tribunal 4.7.4 Parliament should also legislate to provide that communications which occur in the course, or for the purposes, of any other form of confidential ADR processes cannot, without the disputants' consent, be admitted or disclosed, as the case may be, in proceedings before a federal court or a federal tribunal. 4.7.5 The general provision described in Recommendation 4.7.4 should be subject to allowing admission or disclosure for the purposes of seeking the leave of a federal court or tribunal to admit or disclose evidence of such ADR communications. 4.7.6 The legislation should allow a federal court or tribunal to give leave to admit or disclose ADR communications, taking into account: • whether leave is sought to enable a party to protect a right or interest which is reflected in any exception to confidentiality recommended in Chapter 3 • the general public interest served by maintaining the confidentiality of the communications, and • whether admission or disclosure would serve the administration of justice. 7 Chapter 1: Introduction ADR practitioners as potential witnesses 4.7.7 The legislation should provide for a general rule that ADR practitioners are not compellable to give evidence of ADR communications before federal courts and tribunals, subject only to the leave of a court or tribunal. In considering whether to grant leave, federal courts or tribunals must take into account the factors enumerated in Recommendations 4.7.6. Further national reforms 4.7.8 The Attorney-General should liaise with state and territory counterparts to encourage them to consider introducing uniform admissibility provisions across Australia. Chapter 5: Practitioner immunity There is no general immunity from legal action for ADR practitioners, although immunity can be provided by the practitioner's individual contract for service, or by statute in particular areas of ADR work. Practitioners engaged in both facilitative and determinative ADR processes have been afforded immunity in both these ways. 5 The question of whether ADR practitioners should have the benefit of immunity from being sued is not new in ADR. NADRAC previously considered aspects of this issue in its 2005 joint advice with the Family Law Council on practitioner immunity under the Family Law Act 1975 (Cth) 6 and its 2006 report Legislating for alternative dispute...

Alternative Methods of Dispute Resolution (ADR)

2018

Alternative dispute mechanisms-Arbitration and MEDIATION ARBITRATION & MEDIATION Arbitration, conciliation and negotiation are important alternative dispute mechanisms. These procedures may be utilised for virtually any subject area as a replacement to the court procedure. Arbitration, conciliation and negotiation describe processes whereby two or more parties in a dispute attempt to reach a consensus without recourse to the courts in an environment of compromise. The process may be facilitated by an independent third party, in which instance, it is more accurately described as arbitration. The essence of such processes is that the parties are not bound by strict or rigid rules of procedure but are guided by principles of appropriate conduct such as 'good faith' bargaining. An arbitration does not preclude the inherent jurisdiction of a superior court to review the proceedings. Such a review can extend to an inquiry into the conduct of the arbitration. One such instance is found in the case of Re Heirs of Stanley Malaykhan. 1 The court accepted that an arbitrator could misconduct himself or herself by presiding over an irregularity in the proceedings, such as a failure to give notice of the time and place of meetings or by acting unfairly towards the parties by, for example, hearing one party but refusing to hear the other. In the instant case, the court found that the arbitrator was indeed guilty of misconduct, and declared the arbitration award null and void since the arbitration was a nullity.

ADR and the 'Vanishing Trial': The Growth and Impact of 'Alternative Dispute Resolution

Journal of Empirical Legal Studies, 2004

In the past quarter-century, significant changes have occurred in the ways lawyers approach conflict. There have been unprecedented efforts to develop strategies aimed at more efficient, less costly, and more satisfying resolution of conflict, including more extensive and appropriate use of mediation and other “alternative dispute resolution” (ADR) approaches. This study examines what we know and do not know about the growth and impact of ADR in federal and state courts, in the business sector, and in employment and consumer settings. The analysis examines the relationship between ADR and court trial, but also underlines the broader uses of and rationale for mediation and other process choices. Although there is clear positive evidence of cost and time savings and numerous other benefits of some court-annexed ADR programs, it is evident that much depends on the shape and structure of such programs. Studies of ADR in commercial sectors suggest that the use of mediation has grown in recent years, reflecting perceptions that it offers significant potential benefits to business. Some businesses have developed more integrated, systematic approaches to the management of conflict, although most appear to have taken a more ad hoc, reactive approach to dispute resolution. There are many different kinds of programs for the management of employee grievances, including stepped processes that usually resolve disputes without adjudication. Several scholars have begun to develop a body of data on experience and perceptions of employees and their counsel. The availability of data on investor/broker arbitration is critical for promoting transparency and fairness in the securities field. Lawyers have a growing number of tools for providing clients with appropriate ways of managing and resolving conflict, but we still have much to learn about these choices. Quantitative and qualitative research is essential to provide guideposts for the future.