Alternative remedies available through strategic ADR

The strategic use of alternative dispute resolution (ADR) in the management of disputes can lead to remedies unavailable in the Courts while still achieving productive outcomes with considerable cost savings for agencies and the whole-of-government.

Crown Solicitor Greg Cooper said parties involved in ADR were in control of any decision to resolve their dispute and, as a general principle, all disputes were potentially suitable for ADR.

“At the practice level, there is no doubt as to the expediency of resolving a dispute through ADR, the flexibility that mediation offers parties by allowing more control over the outcome and hopefully preserving relationships both personal and commercial,” Greg said.

“ADR provides a structure whereby each party has the opportunity to ‘air’ their dispute with the overall view to narrowing the issues and getting the parties talking directly which is immensely helpful in finding common ground.”

Greg said that one of the issues clients had in this area was identifying when a dispute started.

“As a very general rule, we advise clients that the beginning of a dispute is often when one party’s needs or requirements start to differ from the other party.

“We often advise that, in the first instance, the client should contact the other party if they think that something is not right, to sort out the issue – if there is one – at that level first.”

The Assistant Crown Solicitor of the Commercial Dispute Resolution Team, Paula Freeleagus, said ADR encompassed a range of methods that parties could use to resolve disputes, with the help of a qualified neutral third party, without the need for a formal trial or hearing.

The Federal Court

The Federal Court of Australia’s annual report for 2011–12 shows that mediation continues to be the most frequently used ADR referral made by judges of the Court.

While referrals to mediation have decreased nationally by approximately 4.5 per cent from the previous reporting period, this trend is not uniform across the Court.

The report shows that mediation referrals have significantly increased in both Western Australia and Queensland. In Queensland, the causes of action of most mediations in the same reporting period is industrial (15), native title (10), intellectual property (6) and tax (6).

Over the past two years, the Court has seen several reforms with the introduction of new rules on 1 August 2011 and a new fee structure announced on 10 September 2012, coming into effect on 1 January 2013.

The then Federal Attorney-General, Nicola Roxon, said Court fees would be structured to reflect the capacity of different litigants to pay, with higher fees for publicly listed companies, corporations and the Commonwealth, and fee waivers and exemptions for disadvantaged litigants, and treating small businesses as individuals.

Greg said that while the primary duty of a Court such as the Federal Court was to hear and determine matters, ADR was an aid to the Court in the resolution of disputes.

“It’s always the Court’s hope that parties aim to reach a consensual resolution and s 53A of the Federal Court of Australia Act enables the Court to order non-consensual mediation.

“That power is to facilitate the Court discharging its fundamental task of hearing and determining the matter,” he said.

The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.

Published: 6 November 2012