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What is Alternative Dispute Resolution (ADR)?
Introduction
Parties involved in a Court dispute may wish to explore alternative dispute resolution (ADR) options in an attempt to resolve the issues in dispute prior to hearing. Generally the issue of mediation and other forms of ADR prior to the matter coming before the Registrar at call over. Any requests by parties to engage the services of a Court-appointed mediator should be raised at this call over.
Mediation
At anytime after proceedings in Classes 1, 2, 3 and 4 (civil enforcement) matters have commenced, parties can choose to resolve the matter by mediation. The parties may elect to make their own arrangements for an independent mediator. In the alternative, parties may make a request for a Court-appointed mediator to conduct the mediation session. There is no fee involved for the use of the Court-appointed mediator, however expenses incurred for mediation conferences conducted away from the Court premises will be met by the parties.
The Court can also refer matters to mediation where it considers appropriate, but participation is wholly voluntary. Mediation is informal and confidential. It is a structured negotiation process in which a mediator, as a neutral and independent party, assists the parties toward a resolution. It is not the mediator's role to decide for the parties. Anything said or any admission made in mediation cannot be used in any proceedings before a court or tribunal. No report is made to the court, and any documents produced for mediation are returned to parties at its conclusion. If the conflict is not resolved the judge who subsequently hears the matter will know nothing of what has taken place in the mediation conference.If the parties reach an agreement at the mediation conference they can simply agree to be bound by the terms of that agreement. The agreement may remain informal, with parties solely responsible for its implementation. However parties may choose to have the agreement given the force of a Court order so that it is binding. In this case they draft "consent orders" which are then considered by a duty judge and, if appropriate, endorsed as orders of the Court.
Neutral Evaluation
Instead of mediation, parties may choose to have neutral evaluation. Like mediation, neutral evaluation is a voluntary and confidential process. However the evaluator seeks to identify and reduce the issues of fact and law in the proceedings, assess the relative strengths and weaknesses of each party's case, and offer an opinion as to the likely outcome if the proceedings were to go to court.
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