Professional Documents
Culture Documents
Dispute Resolution
Your guide to
Dispute
Resolution
ISBN 978-1-922032-16-4
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PAGE 1
FOREWORD
From the Attorney-General
Access to justice is a priority for the Australian Government. Mostly we talk about access
to justice in terms of Australia’s court system. Courts play a very important role in helping
people to access justice and, as Attorney-General, I have talked about how important it is
that our courts are geared as much to the small, one-off litigant as to large corporations.
However, not everyone with a dispute goes to court and access to justice goes beyond
access to the courts. It’s also about access to information and support to help people
with the other, less formal pathways that are used every day to resolve disputes.
Most people resolve their disputes themselves. Others seek assistance from an
independent third person or body.
Alternative dispute resolution offers many benefits. It has the flexibility to be tailored
to people’s needs. The processes are less formal and offer the potential for the people
involved to have a bigger say about the outcome of their dispute.
This guide contains basic information about some of the alternative dispute resolution
options available, giving practical tips on using alternative dispute resolution and
helping people to identify the advantages of the different processes available. For some
people, reading this guide may be the first step in understanding that there are many
ways to resolve disputes outside of the courts.
I would like to commend the National Alternative Dispute Resolution Advisory Council
(NADRAC) for the work they have done in producing this useful guide, in collaboration
with my department.
CONTENTS
INTRODUCTION 4
1.1 What is this guide about? 4
1.2 What is the aim of this guide? 4
1.3 What is ADR? 5
INTRODUCTION
The diagram below shows a number of processes you can use to manage a dispute.
• deciding whether you can live with Using ADR to resolve your dispute can
things staying the way they are benefit everyone. It means that courts
• talking to the other people involved and tribunals can spend their time
and trying to find an outcome considering disputes that need a court or
(sometimes called ‘negotiating’) tribunal decision.
• getting help from an organisation or
a person who is not involved in the Flexibility
dispute. This could include:
• ADR processes can be flexible,
–– an ADR practitioner, such as because the process can be made to
a mediator suit your particular dispute.
–– a lawyer or other person who
–– Court processes are generally
may negotiate for you or give you
less flexible.
advice on your legal rights
–– a person trusted by everyone Privacy and confidentiality
involved in the dispute
• ADR processes and outcomes are
–– an Ombudsman usually private and confidential.
–– a court or tribunal.
–– Hearings and decisions of courts
Sometimes you can use technology to and tribunals (including the
support a dispute resolution process. reasons for the decision) are
usually public.
When choosing the best dispute
resolution process for you, think about: Self-directed
• how the other people involved want • In an ADR process you and the other
to manage the dispute people involved usually choose who
• whether you want an independent the ADR practitioner is. You can also
person involved and, if you do, what agree about some of the things the
you want them to do ADR practitioner can do.
• how structured you want the dispute • When you use a court or tribunal, a
resolution process to be decision-maker (such as a judge) is
appointed for you. What the decision-
• what sort of relationship you want to
maker can do is based on the law.
have with the other people involved
• In an ADR process you and the
• how much you are prepared to
other people involved decide on the
spend—in time and money
outcome of the process.
• how much control you want over
• Courts and tribunals usually
the process
control the outcomes of court
• how much control you want over and tribunal processes.
making a decision or agreement.
DISPUTE RESOLUTION
PROCESSES
3.1 Prevention –– to try to find out what is important
to the other people involved, for
Some ways to prevent disputes include: example by asking ‘How is that
• Be open to other points of view. important to you?’
• Give everyone the chance to –– about how the other people involved
respectfully communicate their would like to move forward.
points of view. • …respond
• Listen and try to understand other –– after listening well. This might
points of view. involve listening for longer than
• Find out what the other people involved seems comfortable to you.
want, for example by asking them. –– using ‘I think…’, ‘I’d prefer…’ or
• Think of the other people involved as ‘I wonder whether…’, instead of ‘I
‘equal and different’. want…’ or ‘I have decided…’
• Accept some or all of the needs of the –– making suggestions for an outcome
other people involved. that meets the other people’s needs
and that you can accept.
Some tips on communicating to manage
–– speaking for yourself; listen to others.
differences include:
• avoid…
• Listen…
–– reacting to demands or threats.
–– …for what you have in common.
This is a good place for you and –– asking questions that accuse, such as
the other people involved to start ‘You did…’ or ‘You told me that…’
looking for an outcome. –– saying ‘You did…’ or ‘You are…’
–– …for what the other people need This can lead to blaming instead
or are concerned about. Respond of focussing on how you are
reasonably to what they are saying. impacted by other peoples’
behaviour.
–– …and then check with the other
people involved to make sure you –– saying ‘Obviously…’
have understood them. –– making conclusions about what the
• …then ask questions… other people involved said. If you do
make conclusions, check with them
–– that start with ‘How can we…’ or
that your conclusions are valid.
‘What possibilities are there for…’
• consider what you can do next if you • want to control the outcome, rather
cannot reach an agreement through than ask someone else to decide
the negotiation. • want to keep discussions confidential
• In a negotiation, you and the other • want to find innovative ways to resolve
people involved in the dispute can the dispute, such as an outcome where
agree to: everybody benefits (sometimes called a
• speak for yourselves or be assisted win/win outcome).
by people, such as your lawyer or You can also choose to have another
another professional person involved in the negotiation who
• only make binding decisions at the helps run the negotiation and does not
end of the negotiation take sides. This type of negotiation is more
• what will be talked about during the structured, and the way the negotiation
negotiation, including what solutions process works can be very different.
are discussed
The type of negotiation you and the
• how the negotiation process will work other people involved choose depends
and how an outcome will be reached on how much control you each want to
• whether or not the negotiation will maintain over how the negotiation works
be confidential. and the type of negotiation you feel
comfortable using.
Types of negotiation and when they
might be suitable Sometimes direct negotiation will not
be a suitable process for you to resolve
There are different types of negotiation. your dispute—for example if you have a
The most common type is where you and difficult or bad relationship with the other
the other people involved in the dispute people involved.
• help you and the other participants to • tell you what to agree to—you decide
stay focused on resolving the dispute what to do, including whether to stay
• make sure you and the other at mediation
participants know and understand • decide who is right or wrong—
what issues have been agreed everyone is different; the focus of
• help you and the other participants to mediation is on finding an outcome
keep communication going that everyone can live with
• manage interactions so that they are fair • give legal, financial or other expert
• help you and the other participants advice—if you choose, your lawyer
to decide whether possible solutions can give you legal advice and
are realistic your financial adviser can give you
financial advice, before, during and
• support you and the other
after mediation
participants to try to reach a final
agreement that you all agree • provide counselling—if you choose,
is appropriate your psychologist, psychiatrist or
counsellor can give you support
• refer you to other services that can
before, during and after mediation.
help you.
Sometimes the mediator can act as a
There are some things that mediators do
‘messenger’. They listen to you and
not do. They do not:
the other participants separately and
• take sides—they are there to help communicate ideas between you.
each participant
• make decisions—you and the other You will usually be asked to attend
participants make decisions mediation together so that you can talk
to each other directly.
Ombudsman offices provide independent You can find more information about
review and investigation services. The Ombudsman and contact information for
term ‘ombudsman’ commonly describes many of Australia’s Ombudsman offices
both the person who holds the position on the Australian and New Zealand
of Ombudsman and the office they run. Ombudsman Association (ANZOA)
website www.anzoa.com.au.
An Ombudsman office is an independent
Ombudsman offices try to make it easy for
body that:
you to contact them. If you are not sure
• deals with disputes or complaints, whether an Ombudsman can help you
including consumer complaints with a particular type of complaint, you can
• often works with government or check with ANZOA at info@anzoa.com.au.
industry to improve service delivery
and administration. What does an Ombudsman do?
Almost all Ombudsman will encourage Ombudsman can consider your dispute or
you to try to resolve your dispute or complaint and decide what action they can
complaint with the agency or company take. Ombudsman offices often have access
before asking them for assistance. to a range of measures to help resolve
disputes or complaints. These may include:
When you ask an Ombudsman office • managing ADR processes, such as
for assistance: assisted negotiation, mediation and
• any assistance they give you is free conciliation
• you do not need to be represented • investigating an issue, either on its
(for example, by a lawyer) own or as part of a larger problem
• they will try to help you resolve • providing opinions (for example,
your dispute or complaint quickly whether they agree with a decision)
and informally. • making recommendations (for
example, suggesting that a decision
In Australia, there are three main types
be changed).
of Ombudsman:
Some industry-based Ombudsman can
• parliamentary Ombudsman, who
also make decisions that bind service
can help with disputes or complaints
providers, such as electricity companies.
about government agencies
• industry-based Ombudsman, who Ombudsman will try to reach an outcome
can help with disputes or complaints that is fair to everyone involved in the
about service providers, such as banks, dispute. In reaching an outcome, an
insurance companies and utilities Ombudsman will consider:
• statutory Ombudsman and • what the law says
commissioners, who can help • any codes of practice that apply
with disputes or complaints about
professionals or how the law applies. • what is good administrative or
industry practice
• what is fair and reasonable in
the circumstances of your dispute
or complaint.
Arbitration is a process where you and the Arbitration may be suitable for you if you
other participants present your points of and the other participants:
view and facts to an independent person • want a process where a decision is
(the arbitrator). The arbitrator then makes made for you.
a decision based on this information. Arbitration can be very similar to court
Sometimes your professional advisors, such processes, but:
as a lawyer or accountant, will suggest that • it can be less formal than a court
arbitration would suit your dispute. • it can be quicker than a court
Arbitration can be a much more formal • the hearing and outcomes of an
and structured process than mediation or arbitration can be private and confidential.
conciliation. It can seem very similar to a
If you have a commercial or industrial
short form of court or tribunal hearing.
dispute, such as a dispute with your boss
Unlike other forms of ADR, in arbitration: or with an employee, you may find that
there is an arbitration tribunal that can
• there is a much greater need for you
help you resolve your dispute.
and the other participants to produce
evidence (facts)
What does an arbitrator do?
• there may be one arbitrator or a group
of arbitrators to hear your dispute Arbitrators may have a legal background
or qualifications or expertise in the
• the dispute may be in a specialist area
subject of your dispute.
and the arbitrator may have worked
in that area Arbitrators:
• usually you and the other participants • decide how the process will be run
must agree before the process that
• ensure that you and the other
the arbitrator’s decision will be
participants follow guidelines
binding and enforceable.
• are responsible for deciding the
Arbitration may be voluntary, outcome of the dispute.
required under a court order (only
made where all of the participants Arbitrators can often make a final and
have agreed to attend arbitration) or binding decision about the dispute.
required as part of a contract. Often, Generally, you and the other participants
people involved in a dispute over a will agree before the arbitration
contract will use arbitration because happens that you will all accept the
they agreed in the contract to use it arbitrator’s decision.
if such a dispute arose.
3.8 Courts and You can use all sorts of ADR processes
to try to reach an agreement before a
tribunals: litigation hearing takes place, including:
Generally, in court and tribunal • negotiation
processes you and the other participants
• mediation
present your points of view and facts to
an independent person (such as a judge • conciliation
or a tribunal member). You can do this • neutral evaluation
yourself or be represented by a lawyer. • a combination of ADR processes.
The independent person then makes a
• Using a court or tribunal to
decision based on this information.
resolve a dispute
You will be required by law to follow the
Courts and tribunals encourage
decision, except if you successfully appeal it.
people in dispute to try to reach an
Sometimes you will have to take part in agreement themselves.
alternative dispute resolution before you
If it is important to you to maintain a good
go to a court or tribunal as part of the
relationship with the people involved in
court or tribunal process.
the dispute, then resolving a dispute by
Most people who have a dispute resolve reaching an agreement with the other
it without going to a court or tribunal people involved will generally be better
and most people who start a court or than going to a court or tribunal.
tribunal process settle their dispute by
Sometimes using a court or tribunal to make
agreement before any final court or
a decision on your dispute is necessary. This
tribunal hearing.
could be because:
Most courts and tribunals will have • urgent action is required
information about ADR processes • there are serious safety risks involved
that you can use to help you reach an
• no agreement can be reached
agreement. Many provide ADR services
through ADR.
or can refer you to ADR services that are
outside the court or tribunal.
Tribunals
Most courts or tribunals expect that you Tribunals aim to determine a dispute in a
will have tried to use ADR before a court way that is fair, efficient and quick. There
hearing takes place. is a range of tribunals available that may
be able to help you resolve your dispute.
SUGGESTIONS TO
HELP YOU WHEN
RESOLVING DISPUTES
4.1 Preparing for ADR • Tell your ADR practitioner if you are
a person with some special needs—
Being involved in a dispute can be stressful. letting the ADR practitioner know
Feeling prepared may help you feel less how they can help you will make the
stressed and get the most out of ADR. ADR process more useful.
You might find the following suggestions • In preparing for your ADR session,
useful in preparing for your ADR session— focus on ideas for solving the
even if you’ve used ADR before. Each ADR problem rather than on the
process is different. Your ADR practitioner personalities of the other people
can tell you what you can expect and involved in the dispute.
how to prepare for your session. • Think about:
• Get advice and support before your –– what information you may need and
ADR session—for example: collect it to take to the ADR session
–– talk to friends who have used ADR –– what issues the other participants may
–– talk to a lawyer or other want to discuss in the ADR session
expert advisers –– what issues you want to discuss in
–– meet with your support person, if the ADR session
you have one, to discuss what you –– what is important to you
expect from them and how best –– what might be important to the
they can support you (see section other participants— this will help
below on what a support person you to think of options you may all
can do for you) be able to agree to
–– look up information on the –– your Plan B— what will you do if you
internet. and the other participants do not
• Talk to your ADR practitioner reach an agreement? Will you try
before the ADR session and ask any the same ADR process again or use a
questions you have about how the different dispute resolution process?
process will work.
In these situations, the law or a court Some suggestions for getting the most
or tribunal may tell you how you must out of your ADR session
behave during ADR. For example, the law If you are participating in ADR, you
and court or tribunal orders will generally and the other participants are generally
require you to act in good faith. expected to make a genuine effort to
reach an agreement. This means that
You are responsible for making sure
during the ADR process you and the
that you understand what your legal
other participants:
obligations are. If you are unsure about
your obligations, you could: • approach the ADR process with an
open-mind
• ask your lawyer
• listen to the other participants’ points
• ask your support person
of view and suggestions and tell them
• check the court or tribunal’s website. your own
• talk to the other participants openly
Your role in different ADR processes
about the issues in dispute
ADR processes are different and your role • provide information to the other
can be different too. For example: participants— when deciding what
• In processes like mediation, you usually information to provide, think about
have a very active role—your role what approach you would like
includes listening, talking and deciding. the other participants to take in
• In processes like conciliation, the ADR giving you information
practitioner may give you advice— • are available to meet for the
your role includes listening, talking ADR sessions.
and deciding. Your decisions include
whether you will accept the ADR
practitioner’s advice.
Role of ADR practitioners You can find the contact details of RMABs
on the Mediator Standards Board website
You can expect your ADR practitioner to be:
at www.msb.org.au.
• impartial
Depending on the RMAB, you may be
• independent
able to make a complaint:
• qualified
• in writing
• professional at all stages of your
ADR process • over the phone
What happens after you make When you make a complaint, you can
a complaint expect to:
It may be possible to solve your • be provided with the opportunity to
complaint immediately, if you are express your opinion in ways that are
satisfied with: reasonable, lawful and appropriate
• knowing that your ADR practitioner • have a fair and impartial assessment
will be aware of your complaint and, where appropriate, an
investigation of your complaint based
• you and the ADR practitioner hearing
on the merits of the case
each other’s point of view
• have a fair hearing
• receiving an apology
• be informed, at least in general terms,
• having an error corrected
about the actions taken and the
• being reassured that your ADR outcome of your complaint
practitioner was acting correctly
• be provided with reasons that explain
• a review being undertaken to ensure that decisions affecting you
an issue was dealt with appropriately.
• be treated with courtesy and respect
In other situations, your complaint might • communicate your concerns and
take a while to solve. It might help you views without fear of reprisal or other
solve your complaint if you: unreasonable response.
• raise it with the
You are expected to:
ADR practitioner yourself
• clearly identify, to the best of your
• put your complaint in writing
ability, the issues of your complaint
• give the organisation working on
• provide, to the best of your ability, all
your complaint more information
the relevant information available to you
about your complaint.
at the time you make the complaint
• be honest in your communications
• disclose any other action you have
taken in relation to your complaint
• cooperate with staff who deal with
your complaint
• treat staff who deal with your
complaint with courtesy and respect.