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Alternative Dispute Resolution in the Australian Capital Territory
Alternative Dispute Resolution in the Australian Capital Territory (also referred to as ADR) is a system of resolving disputes outside of courtrooms. Australia has a nation-wide system for ADR in its Federal Courts.
ADR can help people resolve a dispute before they go to court. It is usually faster, cheaper, and does not have to involve lawyers. Although many lawyers receive training in ADR.
It is also a good option because it can help you with a problem that might not be something you could take to court. ADR is usually also private and confidential, and you are the one in control of the process rather, than the court.
ADR can still be used even when you go to court if you think you might be able to solve your problems more effectively without litigation.
When is Alternative Dispute Resolution used in the Australian Capital Territory?
ADR can be used whenever you have a problem or complaint about something that is happening to you. There are hundreds of different problems where ADR can apply but some can include:
- A dispute with your neighbour about trees, fences or pipes;
- An argument with your local council about a planned road or development;
- A debt somebody owes you or your business; or
- A claim for compensation for damage to your motor vehicle or house that was not your fault.
What are the different types of ADR?
ADR is supposed to be flexible and able to work in solving a lot of arguments. Really, ADR is all about communication with the person you have a complaint about.
Negotiation or compromising is an ADR process that is usually the first option for many people. This involves you talking to the person about your problem and seeing if you can both agree to a solution you can both live with.
Negotiating or compromising works best when you both try to see each other’s point of view, rather than just ‘sticking to your guns’ and trying to win. If you get a workable solution, sometimes it helps to write them down and you both sign them. Although this might not be a legal contract, it does show you are both committed to fixing the problem.
Mediation or facilitative ADR
If you still are not satisfied after attempting to negotiate, there might be a way to use ADR by involving a third party. That is, somebody who is not directly involved in your dispute who might be able to help.
Usually this will be a trained mediator but if your complaint is about a government agency then the Commonwealth Ombudsman might also be able to help. You can find a list of accredited mediators in the ACT here.
Mediation occurs when you sit down with the mediator and the other party and try to work out the problem. You can involve a support person or a lawyer if that would make you feel more comfortable.
Mediators usually will not interrupt or make decisions. Instead, they will try to encourage you to develop your own solutions. That is why this process is sometimes called facilitative ADR.
Sometimes mediators can help disputing parties see each other’s points of view.
There can also be indirect mediation called ‘shuttle’ mediation. Here the mediator meets with you first, then the other party (or the other way around). They will then try to resolve things in a back-and-forth manner. This kind of mediation might be suitable if you do not feel safe communicating with the other party or feel they are forcing the dispute on you against your will.
Be aware though, mediators will not give legal advice even if they are trained lawyers.
Arbitration or determinative ADR
Another mechanism of ADR is arbitration, evaluative or determinative ADR. This is when someone will hear your arguments and those of the other person before making a decision that will affect both of you.
A lawyer might do a private judging, where they look separately at your cases and advise you both on who might win if the matter went to court. Arbitration might also involve an expert in the area of your dispute who has particular knowledge about your problem, such as an engineer or an accountant.
These processes can help because you might want a decision that will protect your rights against the other person. Arbitration decisions are also usually confidential. However, arbitration can be fairly inflexible and time-consuming in comparison to other methods of ADR.
Remember, a person who has never met you or the other party will be asked to make a decision about your arguments.
What is the process?
A negotiation must involve a willingness to see the other’s points of view. Some tips for negotiating with the other parties are as follows:
- Set some ground rules – no shouting or swearing. Talk first decide last and what is said stays confidential. This should give you both the confidence to talk about the problem;
- Be willing to listen to the other person and hear what they have to say, even if you do not agree with it. This might involve listening for longer than you are usually comfortable with;
- Ask questions about the other person’s claims and try to find some things you agree on;
- Repeat parts of their argument back to make sure you understand them, especially if English is not their first language;
- Ask them what their perfect solution is. You may be surprised how often this is something workable for both of you;
- Do not ignore the person when they talk or make disrespectful comments about them or their argument;
- Avoid interrupting, shouting over or blaming the other person; and
- Do not make threats or demands.
You should be prepared to give up some things you are not really concerned about. You can usually use this in negotiation by explaining that, for example, you will do something if the other person does something you want.
If you reach a solution here it is best to write it down and get both of you to sign it. This can be a reminder to both of you what you agreed to do. Also remember that you can always change this later on as long as you talk about it with the other person first.
If negotiation does not work, you might need to seek the assistance of a mediator. Usually the mediator will want to meet with you somewhere neutral – it could be at the mediator’s office, or somewhere else like a meeting room or even a café.
If the mediator is using shuttle mediation they may come to your house if you ask. The mediation usually follows a similar structure to a negotiation:
- The mediator will introduce everyone and set some rules about appropriate communication;
- The mediator will pick someone to go first and let them talk about their issue. The mediator will step in if somebody tries to interrupt;
- Then they will pick someone else, and they talk, until everybody has had a chance. The mediator might ask questions that help everybody understand what the problem is, or what a good solution might be;
- Usually a mediator will tell the parties when a solution is not reasonable or realistic; and
- They might refer you to some other services that might be able to help.
Mediators will not make a decision for you. That is for you and the other party to figure out.
If mediation is inappropriate or is not working, arbitration may be the last step before resorting to court. Usually an arbitration will work the same as a mediation but will be held at a court or tribunal building.
The arbitrator will hear all of the evidence before making a decision. You should remember that you will need more evidence for your argument during an arbitration than during other ADR stages.
This decision will then be binding on both parties meaning that you have to follow the decision, even if you do not like the result. Your only other option after arbitration is to get some legal advice and see if you should take the matter to court.
There is no specific law regarding ADR in the ACT but ADR is recognised as being an important step before you go to court. Under both the ACT Civil and Administrative Tribunal Act 2008 and the Civil Law (Wrongs) Act 2002, ACT courts and tribunals have the power to order you to attend any of the above methods of ADR, even if you do not agree.
For Federal Courts (the Federal Circuit Court, the Federal Court of Australia and the Family Court) this goes one step further. Before you start any proceedings, you have to tell the court what ADR steps you have taken. This is called a genuine steps statement under the Civil Dispute Resolution Act 2011.