Alternative dispute resolution in Queensland, also known as ADR, is an umbrella term for a variety of means designed to assist people and organisations to settle a legal dispute without having to go to court, such as mediation, conciliation, and arbitration.
It can be used in most types of disputes, including civil cases, family law disputes, and some criminal cases.
Mediation is one of the more informal means of alternative dispute resolution in Queensland. The parties meet together to discuss their dispute and try to arrive at a compromise or some form of agreement to settle the issue with the help of an independent person, the mediator.
You are allowed to bring your lawyer with you only if the mediator approves. You may also be able to bring in any experts who might help with the resolution of the dispute.
If the parties are able to come to an agreement, the mediator documents it and gives a copy to each party, and to the court if it is a court matter. It is up to the parties to determine what is included in any agreement reached.
If the parties fail to reach an agreement, whatever is said at mediation can’t be used in evidence in a later trial without your consent.
The court can enforce a mediated agreement, as long as it has been documented and signed by all parties including the mediator, if you or the other party applies for an order. If the matter goes to trial, the successful party may be able to obtain an order for the costs associated with the mediation process.
Mediation is usually voluntary; however, many courts and tribunals require you to utilise dispute resolution procedures in an effort to settle your matter before it can be heard by the court.
Justice mediation is a means of alternative dispute resolution in Queensland which is simply a mediation that takes place between a person who has been harmed (complainant) and the person responsible for it (defendant).
It usually applies to Magistrates Court offences, like less serious stealing, assault or wilful damage offences, but may also apply where more serious offences have been committed. Whether or not justice mediation can be undertaken depends on the circumstances.
This form of mediation is generally undertaken before the matter is heard in court or before the defendant is sentenced, but it is not limited to these timeframes.
Parties can be referred to justice mediation by either the police or a court. Participation is voluntary. It is generally held at the local courthouse or Dispute Resolution Centre and takes about 2 hours.
Before it begins, mediation staff will talk with the victim of the crime, or the complainant, as well as the defendant and anybody who is there to support them. The complainant doesn’t have to attend the mediation in person. They can nominate someone else to attend on their behalf, or they may instead write or record a victim statement. The complainant explains how they have been harmed, and the defendant can talk about what led them to commit the offence. They then discuss how the defendant might attempt to repair the harm they caused. This may mean:
- returning stolen property
- paying compensation
- repairing damage
- agreeing to attend counselling or courses.
After the mediation, if the parties have agreed on what the defendant should do to try to rectify the situation, the mediator helps the parties to commit it to writing. A copy is provided to the referrer who then decides whether the court process should continue.
If your dispute involves workplace discrimination or the provision of services, conciliation may be the best form of alternative dispute resolution in Queensland by which you might resolve the dispute.
Conciliation assists the parties in identifying the issues, and to discuss possible terms of settlement. The parties receive expert advice from the conciliator, but they cannot decide on the terms of the agreement for them.
You may be required to try conciliation before going to trial in some courts and tribunals.
A relatively new form of alternative dispute resolution in Queensland, collaborative law requires both parties (and their lawyers) to work together to try to reach a settlement. The parties must try to come to the discussion calmly, having set aside the emotion of the argument, and ready to participate fully in a negotiation process.
A participation agreement is signed at the beginning of the process whereby the parties agree to act in good faith, to attend all meetings as required, and to disclose all relevant information. A breach of the agreement may mean that the lawyers will withdraw from the process and will not be able to continue to represent you in any later proceedings.
Although collaborative law can be used for commercial areas, it is most often used in family law matters.
Arbitration is a more formal version of alternative dispute resolution in Queensland which occurs outside of the courts. The arbitrator’s decision is legally binding on the parties. The parties to the dispute choose an independent qualified expert with the necessary legal and, if necessary, technical knowledge (known as an arbitrator) who will act as a judge.
Arbitration is often used in large commercial disputes, building and construction contracts, and employment matters.
Many of Queensland’s courts and tribunals use alternative dispute resolution as a matter of course.
- The Building and Construction Industry Payments Act 2004 (BCIPA) sets out a process by which parties involved in the building and construction industry can try to sort out payment disputes. The process is overseen by the Queensland Building and Construction Commission.
- Mediation is a primary feature of the QCAT dispute resolution process. The Alternative Dispute Resolution division co-ordinates the mediation services for less serious civil disputes using their own mediators, or those employed by the Department of Justice and Attorney-General in their Dispute Resolution Branch.
- In the Family Court, mediation is compulsory in cases concerning the care and custody of children. A matter can only be heard in the Federal Circuit Court or the Federal Court if parties have genuinely tried to resolve the dispute. You don’t need a solicitor for mediation but you should get legal advice before going to a mediation session as you need to know what the law says about parental rights and responsibilities and the division of property and assets so you don’t lose out on your entitlements.
This article reflects the state of the law as at 31 May 2016. It is intended to be of a general nature only and does not constitute legal advice. If you require legal assistance, please telephone 1300 636 846 or request a consultation at gotocourt.com.au.