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Australian Lawyers and Consultants

The Methods of "Alternative Dispute Resolution" ("ADR")

November-December 2004

Mediation enables the disputing parties to resolve disputes in a confidential and non-adversarial way. The procedure is informal and can usually be tailored to suit the disputing parties’ needs. The mediator is a neutral and impartial chairperson to whom the disputing parties each present their viewpoint. The mediator’s role is to facilitate discussion, but does not impose a decision on the disputing parties or make decisions on behalf of the disputing parties. Conciliation, whilst similar to mediation, allows the chairperson to identify and clarify the issues in dispute and therefore play a more active role than a mediator. The conciliator is able to conduct his or her own investigations and state his or her views on the issues in dispute to the parties. Arbitration is more formal than mediation or conciliation. The Arbitration process in Victoria is governed by the Commercial Arbitration Act 1984, which sets out the rules and procedures for arbitration. The major difference between mediation/conciliation and arbitration is that the outcome of arbitration is binding on the parties and can be enforced as if the decision was an order of the court.

Court directed mediation and arbitration
Although these alternative dispute resolution methods are optional, the Supreme Court itself can, at any stage during litigation, direct the disputing parties (with or without their consent) to mediation (Supreme Court (General Civil Procedure) Rule 50.07). The Supreme Court may also, with the consent of all the parties, order that the proceeding or a question be referred to arbitration (Supreme Court (General Civil Procedure) Rule 50.08).

For further information, contact Sam Recht at BALDWINS, Australian Lawyers & Consultants.

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