Land and Environment Court - Working Party
Appendix B: Organisations Involved in Alternative Dispute Resolution
Australian Commercial Disputes Centre
The Australian Commercial Disputes Centre (‘ACDC’) is a non-profit organisation which was established in 1986 to provide independent dispute resolution procedures nationally. The ACDC has over 300 mediators, experts and arbitrators in areas of specialisation such as building and development applications, commercial and industrial disputes, law, accounting and franchising.
ACDC offers a number of services to assist the parties to reach an agreement. They include:
The outcomes from these dispute resolution methods are not binding on the parties except in cases where there has been arbitration or a determination or where the agreement reached is written in a binding contract. Otherwise, agreed outcomes may be enforceable by judicial proceedings.
- Expert appraisal;
- Expert determination;
- Expert recommendation;
- Arbitration (Australian and international contracts);
- Board of dispute avoidance;
- Mediation followed by expert determination;
- Mediation followed by arbitration (Australian and international contracts); and
- Grievance mediation.
Depending on the type of service that is required, the general procedure is as follows:
- A party claiming that a dispute has arisen must give written notice of the dispute to the parties involved, specifying the nature of dispute;
- On receipt of the notification, the parties to the dispute must seek to resolve the dispute within seven days;
- If the dispute is not resolved within seven days, the dispute is referred to ACDC for the dispute resolution method agreed in the contract and will be conducted according to the dispute resolution guidelines set out by the ACDC.
There are no fees for initial inquiries or consultation, however upon referral to ACDC, there is a registration fee of $300 which covers 2.5 hours of administrative work performed by ACDC. A subsequent administration fee is charged at $60 per hour (plus disbursements) with a fee of $320 for nominating an arbitrator, expert or mediator. The fee for an arbitrator, mediator or mediator varies between $120 to $400 per hour (with 10% of the fees being paid to ACDC).
The usual costs for the services are:
- Mediation: $700-$2,000 per party;
- Expert mediation, appraisal, recommendation: $700-$5,000 per party;
- ACDC arbitration: $1,000-$50,000 per party.
The costs are usually incurred evenly by the parties however, where a party does not comply with the recommendations under certain agreements, the non-complying party bears the costs for any subsequent arbitration or litigation.
The Role of ACDC in development applications
ACDC has developed a panel of specialist environmental mediators to assist parties in reducing adversity, clarifying issues, exploring alternatives and searching for solutions. The mediation is offered at three different stages:
- Prior to the application being lodged with the consent authority;
- After submission of the application but prior to consideration by the consent authority; or
- After the decision of the consent authority but prior or in addition to litigation.
The mediation session can be attended by all parties (including legal representatives) however, where the number of the representatives for a party is too large, they will be limited to two representatives per party. Where an agreement is reached, the necessary changes are included in the application to be approved by the consent authority.
Community Justice Centres
Community Justice Centres Act 1983
Under the Community Justice Centres Act 1983 (‘the Act’), mediations are voluntary and a party always maintains the right to withdraw from mediation at any time. The Act also makes it clear that any agreement made in a mediation is not enforceable in any Court or tribunal.
The Act requires mediation to be conducted with as little formality and technicality as possible and as expeditiously as possible. The rules of evidence do not apply in mediation conducted under the Act and no dispute may be adjudicated or arbitrated. Generally the mediation is conducted in private, but non-parties may attend with consent of the Director. Parties are expected to represent themselves but they may, in some cases, be represented by an agent where the Director approves.
The Act provides strict confidentiality to any content or information disclosed in mediation. Material cannot be subpoenaed or used without the express permission of the parties. The Act also protects the mediators from any requirements to disclose information.
At present, there are over 450 mediators dealing with approximately 6000 open files and equivalent number of additional inquiries every year. Approximately 50% of the matters referred to the Community Justice Centres (‘the CJC’) end up in a formal mediation , and of those 85% reach a satisfactory agreement between the parties.
The Role of the CJC in development applications
With respect to development applications, the CJC deals predominantly with neighbourhood and environmental disputes between two parties or multi parties. The focus of intervention is the management of community based conflict which may require a range of interventions including conflict management, dispute counselling, facilitation and mediation. The interest and focus is not the commercial nature of the development application, but the nature of the dispute.
The CJC has made formal and informal agreements with local governments to provide mediation and related conflict management services. For example, more than 50 matters relating to the Environmental Planning and Assessment Act 1979 have been mediated under an agreement entered into in 1998 by the CJC with the Newcastle City Council. Satisfactory outcome was reached in 78% of the cases.
At present, the CJC is the preferred tender for the provider of mediation services for Warringah Council, and additional resourcing is being considered for town planning matters. However, the disputes will continue to be neighbour- and environment-related and will not involve large scale development disputes. The core services will continue to be free to parties; however some matters of a more complex nature and any related training will be charged to councils on a case-by-case basis.