Alternative Dispute Resolution (NSW)

Alternative Dispute Resolution (ADR) refers to non-court processes available to help people and organisations resolve a dispute without court action. It can be used in most types of disputes. This article outlines the main ADR options in New South Wales.

Why ADR for disputes?

ADR provides for early resolution of new disputes and faster resolution of long disputes. It allows parties to avoid the expense, time and stress of court proceedings, and allows parties to develop a mutually acceptable outcome.

Other benefits include privacy of discussions, greater flexibility in negotiations, and a greater range of possible solutions than would be available via court proceedings. Also, dispute resolution methods can be incorporated in agreements before disputes arise, so any problem that may develop can be solved quickly and at a lower cost.

Mediation

This involves an independent mediator helping the parties to solve the dispute by facilitating an agreement between them. It is conducted “without prejudice”, meaning nothing raised in mediation can be used in a later trial without consent. If the mediator agrees, a party can present a lawyer and experts.

If an agreement is reached, the mediator has parties document the agreement and sign it. The mediator gives each party a copy and files a copy with a court registrar. The mediated agreement can be enforced if it has been documented and signed by both parties and either party applies for an order to enforce it.

If an agreement is not reached, the case can go to trial. The failure to reach agreement cannot be used by either party as evidence. The successful party may be able to recover the costs of ADR.

Some courts and tribunals can order that parties attempt mediation before the case will be heard.

Conciliation

Conciliation is similar to mediation in that a neutral person helps parties reach an agreement. However, a conciliator is usually an expert on the subject of the dispute and may help advise on the content of the dispute but not determine a result. Some courts and tribunals can order parties to attempt conciliation before going to trial.

Facilitation

Facilitation is similar to mediation in that a neutral person helps parties reach an agreement. However, facilitation is usually used for groups in conflict, such as in planning or body corporate disputes, because it can be used as a forum to express differing viewpoints in reaching an agreement.

Arbitration

Arbitration is a formal process where parties to a dispute choose an independent arbitrator to make a decision. Parties can agree to arbitration but often one party applies and the other party is required to take part. Arbitration is sometimes used when other ADR methods have not worked but is often used in industrial relations disputes or contractual disputes between businesses.

In some jurisdictions the decision is binding and in others, such as in family law and property matters, a party will need to file the arbitrator’s decision with a court for it to be binding.

Expert determination

This process has parties to a dispute present their arguments and evidence to a dispute resolution practitioner. The practitioner is chosen on the basis of their specialist qualification or experience in the subject of the dispute. Unlike conciliation however, the practitioner makes a determination. The determination is usually enforceable through a court.

Collaborative Law

This involves all parties and their lawyers signing an agreement to reach a settlement without resorting to litigation. This puts the focus on achieving a negotiated settlement.

Disputes and the NSW Civil and Administrative Appeals Tribunal (NCAT)

NCAT uses a range of ADR methods. This includes “expert conclaves” (joint conferences) which gather experts to discuss matters prior to a hearing, with an aim to narrow the issues at dispute and produce a report for the tribunal. Conclaves are usually used in building disputes. NCAT also uses neutral evaluation, which involves a tribunal-appointed person providing an opinion on likely outcomes of a dispute. It is used when a resolution requires an assessment of both the facts and the law.

Disputes and NSW Fair Trading

NSW Fair Trading provides a home building dispute resolution service that uses experienced and trade-qualified building inspectors. The inspector can meet the consumer or trader on site but can also resolve the dispute via phone discussions and submissions from parties. If an agreement between the parties is reached, the investigator will complete a complaint investigation report which records the agreement. If an inspector believes work is defective or incomplete, they can issue a rectification order to a trader.