Alternative Dispute Resolution

This chapter provides an overview of the theory and practice of alternative dispute resolution
(ADR). It outlines the demand for methods other than litigation to resolve disputes, and
focuses on the growth of mediation, arbitration and court-annexed procedures in Australia.
Other methods of dispute resolution are also discussed.
In the context of mediation, the structure of the mediation process is outlined, and the
nature of consensual dispute resolution explained. Four of the key features of mediation —
accessibility, voluntariness, confidentiality and facilitation — are analysed. Other issues such
as power imbalance, enforceability of agreements to mediate and evaluation of mediation are
also discussed; and the new possibility of an international convention on the enforcement of
mediation agreements is addressed.
The process of arbitration is then introduced, and the requirements of the Commercial
Arbitration Acts, which have now been adopted by every state and territory, are outlined.
The process of international arbitration, the most popular form of cross-border dispute
resolution, is briefly addressed. Finally, court-annexed mediation and arbitration, mediator
certification and practice standards, and the role of the legal profession in ADR practice are
discussed.
This chapter has four broad objectives:
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to encourage readers to recognise some of the limitations of litigation and competitive
negotiation;
to provide an evaluative introduction to mediation;
to help readers understand that the practice of law is broader than the practice of
litigation;
to spotlight that litigation and professional responsibility statutes require reasonable
efforts to be made to resolve disputes without recourse to litigation