Alternative Dispute Resolution NT
Disputing parties often rely on the courts to settle conflicts, but there is a growing demand for alternative options. As a result of this demand, three different types of alternative dispute resolution processes are commonly available in the Northern Territory: mediation, arbitration and conciliation. This article explains the role of alternative dispute resolution in the Northern Territory.
Dispute Resolution in NT
Alternative dispute resolution (ADR) is the term for a dispute resolution process that operates outside the court system. In the court system, the magistrate, judge and jury hear evidence and make a judgment based on common law principles or legislative guidelines. There are strict rules that govern the admissibility of evidence in courts, and the judge controls the process. Once all the evidence has been presented, the judge or jury decides which party is successful.
Alternative dispute resolution offers an alternative to traditional court processes. ADR empowers parties to resolve a dispute themselves while retaining control over the process. Parties to an ADR often feel that the process is fairer than a court hearing, and they are often more willing to abide by the agreement. During an ADR, the issues in dispute are identified, and the parties are encouraged to listen and understand the other party’s point of view.
With ADR, the parties are encouraged to reach an agreement with the help of an impartial ADR practitioner. This ADR practitioner plays an active role in the decision-making process and manages the discussion according to the agreed rules of the process. The ADR practitioner leads the parties to consider dispute resolution options and supports both parties in negotiating an agreement that meets their needs.
ADR initiatives are growing in the Northern Territory. The Territory offers ADR processes through the Public Housing Appeals Panel, the Residential Tenancy Authority and Community Services Complaints Commission. ADR is now used as a pre-court proceeding through the Community Justice Centre (CJS). Under the Community Justice Centre Act 2005, the CJS is authorised to provide free, confidential mediation services to help people resolve disputes without recourse to legal action.
Advantages and Disadvantages of Alternative Dispute Resolution in NT
There are a number of reasons why people would choose not to use the court system, as ADR offers:
- A swifter resolution to a dispute and a more flexible process that is more responsive to the parties’ needs;
- A less formal and intimidating process with decreased financial and emotional costs;
- A confidential process that encourages frank disclosure and greater understanding of both party’s positions; and
- A method of social and community-based conflict resolution, that may include assistance from community members, such as priests or the police.
ADR has been criticised for focusing too heavily on settlement, which can lead to one or both of the parties compromising their legal rights. For this reason, parties to an ADR process should always seek legal advice before signing an agreement to make sure that their rights are protected.
Mediation
Mediation is a particularly effective way to resolve family, community and commercial disputes. Mediation is an appropriate option when a dispute is complex and involves multiple parties. This form of ADR is appropriate for parties who need to have an ongoing relationship after the dispute is resolved (such as parents in a family law dispute).
When parties reach a consensus at mediation, the agreement can be legally enforceable. During a mediation, the disputing parties meet face-to-face. There is also a mediator present who supports the parties in negotiating an agreement. In the Northern Territory, ADR often takes the form of co-mediation or shuttle mediation. With co-mediation, there are several mediators in each session to create a better balance and fairness. In shuttle mediation, the parties remain in separate rooms while the mediator shuttles between the rooms to communicate each party’s position and settlement offers. Mediators are neutral and non-judgmental, but they cannot give legal advice or counsel the parties. They are not supposed to make a determination or apportion blame or impose penalties. Instead, the mediator encourages the parties to reach an amicable agreement.
Conciliation
Conciliation is similar to mediation in that the purpose is to resolve issues with the support of a neutral conciliator. This form of ADR is appropriate when a person’s legal rights are violated, and the conciliator can assist the parties in reaching an optimal solution within the relevant rules and procedures. In the Northern Territory, conciliation is often used to deal with complaints. For example, the NT Anti-Discrimination and Human Rights and Equal Opportunity Commission use conciliation rather than mediation to resolve complaints. Unlike mediators, conciliators often contribute their views and opinions to the ADR process. The conciliator is more directive and, in some cases, even has the authority to issue a determination.
Arbitration
Arbitration is the ADR process that most closely resembles a court hearing. The arbitrator imposes a determination after hearing discussion from both sides. The difference between arbitration and court adjudication is that during this ADR mechanism, the parties voluntarily agree to be bound by the arbitrator’s decision. In addition, an arbitrator is typically selected as an expert on the subject matter of the dispute.
In many cases, arbitration is conducted in a court-style hearing. Alternatively, it can be determined according to a documentary submission process. During arbitration, the parties create their own timetable, conduct the hearing in private and in a less formal atmosphere. Commercial arbitration is the preferred choice for parties who want a binding determination but do not want the matter to proceed to court. The award is enforceable in the same way as a court’s judgment, except for disputes taken to the Banking Ombudsman. An unsatisfied bank customer can still choose to take the matter through the courts following an arbitration.
When parties have elected to proceed with ADR, it is still often appropriate to obtain legal advice before committing to the process. It is important that the parties are aware of their legal rights so they can negotiate from an informed legal position. At any time during an ADR, the parties can suspend negotiations to seek legal advice. For more information, please contact the Go To Court team on 1300 636 846.
