Alternative Dispute Resolution (“ADR”) describes any process used to settle or resolve disputes that is not court-based litigation (ie: it’s an “alternative”).
Alternative Dispute Resolution has a long history however, ADR was not widely adopted in Australia until the early 1990s – when politicians and judges acknowledged that our court systems had become so slow, complicated and expensive they were failing to deliver timely and cost-effective justice to society in general, and to “ordinary” users, in particular.
Mediation was made compulsory in most court and regulatory processes and major “offensives” were launched to clear embarrassingly long backlogs. They achieved high settlement rates, often by warning parties about the prohibitive costs of proceeding to trial! But … since over 95% of all civil cases are settled before they get to court anyway (often on the “courtroom steps”), it follows that this Compulsory Mediation is little more than old school Settlement Conferencing, conducted by barristers, in a different guise.
Compulsory Mediation is not true ADR, because: (a) it’s compulsory; (b) it’s an integral part of, not an alternative to, litigation and, (c) because it focuses on the settlement of legal claims, rather than on the resolution of human issues (and legal claims).
Conclusion: if you just need to settle a claim, institutional mediation may work for you, but if you need to resolve complex issues, and avoid irrevocable damage to important relationships, you probably need a genuine Alternative Dispute Resolution process.
Genuine Alternative DR
Genuine ADR processes cover a spectrum, from informal and free-flowing Facilitation (assisted discussion), through flexible and responsive Mediation (managed negotiations), to highly structured Arbitration (parties appoint their own private judge).
Fit for Purpose
Generally, the less formal the process, the quicker and less expensive it will be. However, less structure = less process authority. Although even the largest and most complicated disputes can be successfully resolved using highly informal processes, this only works when the parties are genuinely trustworthy, and are willing to work together towards a reasonable resolution.
Depending on the nature of the dispute, there are 3 main process avenues to consider:
- Evaluation – an independent neutral expert evaluates: (a) technical issues; (b) legal issues; or (c) the case as a whole.
- Facilitation – an independent expert process manager helps parties to develop an agreed solution to their dispute.
- Determination – an independent decision maker (expert in the subject matter of the dispute, in the law, or both) makes a legally binding decision on relevant issues (like a judge).
Alternative Dispute Resolution Services
We offer a full range of dispute resolution services, from facilitated conversations to formal arbitration.
We perform a sophisticated intake (triage) process to fit the right process to each dispute. Our goal is to achieve maximum efficiency, speed, flexibility, practicality and cost-effectiveness.
Commencing an Alternative Dispute Resolution process is easily achieved by phone or written application to The Solutionist Group.