ADR procedures and their increasing significance in Australia
Discuss about the Alternative Dispute Resolution for Financial Costs.
It needs to be noted in the beginning that Alternative Dispute Resolution (ADR) allows greater control to the parties to a dispute while resolving the conflict as compared to proceedings in case of litigation. Generally, ADR is considered as providing certain benefits to the parties. Not only due to the reason that it is quicker and cheaper as compared to litigation, provides greater control to the parties to the dispute over the transition and financial costs related with the process of dispute resolution (Warren, 2010). At the same time, ADR also provides phone and delivers up to the expectations of the community related with access to justice. It also acts as an accessible gateway to substantive justice. The rate of compliance is high in case of the comments that have been implicated by using ADR processes, increasing from the infidel limitations and mediation and going up to the litigation arbitration, as a result of the involvement of the parties in creating their own agreements and most probably, in their own words. The confidentiality aspect of ADR also needs to be noted but at the same time (Douglas, 2001). It also provides ability to the parties to stay away from the courts. In the center parties can resolve their problems behind closed doors (King et al., 2009). However, while the agreements that are the result of ADR processes provide a number of benefits to the parties, the parties may also have a certain problems like they may lose control over the process, decreasing confidentiality and rising costs. There are those of flexibility and the chances of maintaining relationship with the other party (Nadja, 2008). At the same time, the ADR processes can also reinforce the traditional power imbalances and the perception of secondhand justice, especially from the point of view of the weaker groups of the society and from the viewpoint of some feminists (Silver, 2009). In this way, while evaluating the positive and negative points of ADR, it needs to be noted that the ADR provides a wide range of dispute resolution processes that can keep the parties away from the courts, provide the parties to the dispute more control over the resolution of conflict and at the same time, they are also likely to contribute in saving time and cost for all those involved.
The ADR procedures are missing the Ginsburg angel to reduce the costs and delays that are present in case of traditional good proceedings. The result is that Australians are looking for a less formal means of resolving disputes. The government is also trying to reduce the cost of formal court system. As a result, the size of ADR sector is increasing significantly and it is expected to continue with this expansion (Downes, 2008). Already ADR procedures are used in case of different courts and tribunals as well as other organizations that are operating in federal arena. At the same time, ADR is also being used more frequently at the state level. The influence of ADR is also increasing in the commercial area. It is extended beyond the individual disputes and areas like client complaints, enterprise bargaining, employee grievances and industrial relations. In context of commercial activities, the increasing emphasis is on dispute prevention, resolution and management. In this way, ADR has moved forward from simply being an alternative to the formal justice system (Sourdin, 2008).
Different levels at which ADR assists parties in resolving disputes
ADR assist the parties at several different levels. For example in a wide range of potentially critical and transitional situations, facilitated negotiations can help the parties in identifying issues and developing different options available to them. As a result of the rising use of video in Australia, NADRAC had been established in 1995 so that it can provide for the needed inconsistent policy advice to the Attorney General regarding the development of high-quality, efficient and economical ways to resolve disputes without looking for a judicial decision (Abramson, 2005).
The concept of equality in ADR: The idea of equality plays a significant role in our thinking regarding justice and fairness. One approach the quality is not as formal equality. In this case, it is required that everyone should be treated equally. The idea is that if everyone is treated equally, justice and fairness can be achieved. But this is not necessarily the case. Therefore, if people are unequaled, but they are treated equally, it will result in inequality (Parry, 2008). For example, it is not equality if a person who is visually impaired is asked to fill a loan form, unaided. In the same way as the other persons who are not visually impaired. Same problems can be present in case of resolving disputes (Altobelli, 2006). For example, if people go for mediation and they are not equal in their capacity to use ADR and a significant power imbalances present, it is unlikely that the outcome will be just and fair. Therefore even if the parties are treated by the mediator impartially, the result can be unjust. In this regard an example of commercial mediation can be given where participants are present in a dispute (Spencer and Samantha, 2008). One of the participants is an intelligent, articulate professional who is representing a large corporation and has access to significant resources of advice and money. On the other hand, there is the owner of a small business owners note with the support and a talent for hard manual work only. Such differences present in person style can turn into positive or negative attribute in case of ADR. Therefore treating people equally while resolving the dispute, may still result in unfair agreement.
Substantive equality: substantive equality requires that the unequal as it should be treated unequally. Therefore the persons who are oppressed, underprivileged and comparatively powerless should be provided with what is required by them to allow them to take part equally and to achieve a fair and just outcome (Preston, 2008). Therefore, for the purpose of achieving the inequality, the presence of underprivileged or the lack of power Corp. needs to be recognized. It needs to be compensated, inappropriate and empowering ways. In order to provide justice and fairness to the disempowered people it is required that their views regarding the problem should be listened to. On the other hand, if the powerful only provide what is required or deserved by the disempowered according to them, they may be providing that will be inappropriate.
The concept of equality in ADR
A major problem present with substantive equality is that unless it is recognized by the powerful that in order to create a level playing field, it is necessary that the other side should be provided more help, they will protest that. What is taking place is not just, and it is unequal. Indeed, they are experiencing unequal treatment, but such statement has been designed with a view to produce substantive equality. Of course, in a number of situations the comparatively powerful do not recognize that the other party lens power and privilege (Spencer, 2011).
Therefore, in the end, it needs to be stated that by adopting ADR processes, the parties dispute have major control over the process that is being used by them for resolving their disputes. However, the benefits of using ADR processes for the purpose of resolving disputes need to be balanced against some of the problems associated with these processes. Generally these processes are much cheaper and quicker as compared to litigation. Similarly, the transaction and financial costs are much more less than litigation, especially at the low-end of the dispute resolution spectrum when parties are using methods like mediation or negotiation. Basically, in case of ADR, the delivery of substantive justice is involved. It provides a chance to the parties to get what they want by negotiating and creating their own agreement. This concept of justice flows to the events that have high level of compliance as the parties are directly involved in the creation of such agreements. Therefore they are more likely to adhere to the agreement.
Another important aspect of ADR is that of confidentiality. Therefore, disputes can be resolved by the parties while remaining away from public time. This is generally involve them in case of commercial and family disputes.
But it cannot be denied that the ADR processes help the parties to dispute in staying away from the expense of litigation and they also provide directorial control over the process. However, it needs to be noted that ADR is only one alternative and it is not the method of choice.
References
Abramson, H., 2005, ‘Problem-Solving Advocacy in Mediations: A Model of Client Representation’ 10 Harvard Negotiation Law Review 103
Altobelli, T., 2006 ‘A Generational Change in Family Dispute Resolution in Australia’ 17 Australasian Dispute Resolution Journal 140
Douglas A, S, 2001, Alternative Dispute Resolution Programs in Law School Curriculum-What’s Next? Report for the ABA Section of Dispute Resolution
Downes G, 2008 “Alternative Dispute Resolution at the AAT”, 15 AJ Admin L137
King M, Freiberg A, Batagol B and Hyams R, 2009, Non-Adversarial Justice Federation Press p 88.
Nadja, ‘A., 2008, The Mediation Meta-Model: Understanding Practice’ 25 Conflict Resolution Quarterly 97
Parry D, 2008 “Revolution in the West: The Transformation of Planning Appeals in Western Australia”, 14 LGLJ 119
Preston BJ, 2008 “The Land and Environment Court of New South Wales: Moving towards a multi-door courthouse – Part II”, 19 ADRJ 144
Silver, M., 2009, ‘Supporting Attorney’s Personal Skills’ 78 Revista Juridica UPR 147
Sourdin, T, 2008, Alternative Dispute Resolution LBC Thomsons, 3rd ed
Spencer, D and Samantha H, 2008, ‘Deal or No Deal: Teaching Online Negotiation to Law Students’, 8 Queensland University of Technology Law and Justice Journal 93
Spencer, D, 2011 ‘Pre-litigation Procedures: A Legislative Update and Mediation Media Watch’, 21 Australasian Journal of Dispute Resolution 139
Warren M, 2010, “Should Judges be Mediators?” 21 ADRJ 77
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