Alternative Dispute Resolution

Alternative dispute resolution (ADR) is the term used to describe methods apart from a court hearing which you may use to help solve your legal problem. ADR may be used for everything from neighbour disputes regarding a fence, to divorce settlements, to multi-million dollar commercial contract disputes. In ADR, an impartial person assists those in disagreement to solve the issues between them and reach an outcome that suits them both. Although the independent person chosen by the parties directs the ADR procedure, the parties retain control over the main issues of the dispute and generally reach a mutual agreement.

ADR methods provide a flexible and often quicker and easier means of resolving new disputes early, as well as resolving lengthy disputes which have been running with no end in sight. ADR can be used at an early stage in the dispute before a lot of legal costs have been incurred and both sides have become fixed in their positions. Most importantly, with ADR, the solution is up to you – you are not asking an independent umpire, like a judge, to impose his or her decision.

When can I use ADR processes?

Courts generally expect parties to participate in some form of ADR to try to resolve their legal disputes. ADR can be used at any time in the dispute, from the early stages before it goes to court, right up until when the dispute is ready for trial.

ADR is not limited to a particular type of dispute. Examples are:

  • family and child mediation;
  • community mediation;
  • victim-offender mediation;
  • equal opportunity conciliation;
  • workers’ compensation conciliation;
  • tenancy conciliation;
  • commercial arbitration.

Depending on the circumstances, participation in ADR may be voluntary or mandatory. Parties may agree to use ADR when the dispute arises. Alternatively, a contract, code of practice or set of rules may require parties to use ADR. Many courts and tribunals require the parties to attempt to resolve their dispute in an ADR process before proceeding to trial. In Queensland, all state courts have the power and in some cases will require the parties to attend either mediation or case appraisal.

For example, in the Family Court, while there is a voluntary mediation service available, the parties can also be required to attend compulsory conferences in an attempt to resolve their differences. The Commercial and Consumer Tribunal and Retail Shop Lease Tribunal also require the parties to attend mediation, as does the Human Rights Commission. Mediation in the form of a compulsory conference is also required as part of the pre-court procedures of the Personal Injuries Proceedings Act 2002 (Qld) (section 36).

It is important that even if you are engaging in ADR, that you commence court proceedings by filing the relevant court documents within the relevant time frames. Failure to commence court proceedings within the relevant time frame may mean that you lose the right to commence legal action later on if ADR is unsuccessful. The court action can then be stayed (delayed) pending the outcome of the ADR method.

What different types of ADR processes can I use?

Which ADR process you decide to use depends on which is more likely to be successful and appropriate to your dispute. ADR service providers will usually give specific information about their processes to parties interested in using them.

Type of ADR Description of what is involved
Assisted Negotiation
  • You and your solicitor meet with the other parties and their solicitors to discuss the issues.
  • An independent person (the mediator) helps the parties to a dispute to work out the issues and come up with a solution which everyone accepts
  • It is up to you to make an agreement and you retain control of the outcome.
  • A court or tribunal may order you to try mediation before taking the matter to trial. Mediation may also be required under the terms of a contract as a method of dispute resolution. However, in other cases, mediation is voluntary so you cannot force the other party to mediate.
  • For more information about mediation in the Supreme and District Courts see the Queensland Courts website.
  • Similar to mediation, an independent person (the conciliator) helps the parties to a dispute work out the issues and find a solution.
  • Usually, the conciliator is an expert on the subject of the dispute. They are more active in finding a solution and will help you and the other parties look at the strengths and weaknesses of your arguments but will not decide the issue for you.
  • You retain control of the outcome.
  • A court or tribunal may order you to try conciliation before taking the matter to trial. Conciliation may also be required under the terms of a contract as a method of dispute resolution. However, in other cases, conciliation is voluntary so you cannot force the other party to conciliate.
Case appraisal
  • An independent person (the case appraiser) assesses the merits of the case and makes a decision similar to a judgment of the court.
  • For more information about case appraisals in the Supreme and District Courts see the Queensland Courts website.
  • The parties to the dispute choose an independent person (the arbitrator) to act as a judge.
  • The arbitrator makes a decision which can be final and legally binding on you and the other parties.

How do I prepare for ADR?

In preparing for an ADR procedure, you should:

  • understand the process which will be followed;
  • identify what outcomes you expect;
  • prepare your opening statement which should include what you would like to discuss and what has led to the need for these issues to be addressed;
  • consider the likely reaction of the other party and ways to overcome any objections;
  • be prepared to approach the process with an open mind rather than with a list of demands.

In complex disputes, it is common for a meeting to be held before the process begins to assist all the parties prepare for the ADR procedure and to establish a timetable for the exchange of documents.

Your role at the ADR process is to state your case clearly. Listen to the other side – if your dispute goes to court, the judge might accept the other party’s version. Look for options that can benefit both parties and follow the ADR practitioner’s directions about what to do next in the process. Be willing to co-operate and be prepared to reach an agreement.

Please see LawRight’s factsheet on Mediation – a short guide for further information.

What is the effect of the outcome of ADR?

If the ADR is unsuccessful, the dispute can then go to trial at court in the usual way. The failure to reach agreement cannot be used by either party against the other during the trial. If the matter goes to trial, the successful party may be able to recover the costs of the ADR process. The matters discussed in ADR processes are normally confidential.

Generally, the outcomes of ADR processes cannot be enforced upon you. In some situations however, the outcomes of ADR processes may be enforceable. An arbitration award for example, may have the same effect as a court order. In other situations, the parties may need to take further steps before the outcome of an ADR process can be enforced. This could include certain family law matters where it may be necessary to give certain forms to a court registry for the agreement to become binding.

Do I have to pay for ADR?

Most ADR practitioners charge an hourly rate which varies depending on their experience as an ADR practitioner, their experience as a solicitor, the area of law governing the dispute and their location. Like any other service you can approach an ADR practitioner to negotiate their hourly rate or a lump sum fee. The costs of disputes that are successfully mediated through ADR are notably cheaper than those which proceed to a court hearing.

The Department of Justice and Attorney-General has Dispute Resolution Centres throughout Queensland which provide mediation services and trained mediators. Mediation services are generally provided for free to the public and for a fee in relation to facilitations and workplace mediations. For more information see their website or telephone (Brisbane area) 07 3239 6007 or 1800 017 288.

Contacts for ADR service providers

ADR practitioners are generally chosen by agreement between the parties.

There is no professional society of mediators, although mediators can be accredited under the National Mediator Accreditation System. For more information, see the Attorney-General’s Department website.

The Department of Justice and Attorney-General provides mediation services for free to the public and for a fee in relation to facilitations and workplace mediations. For more information see their website or telephone (Brisbane area) 07 3738 7000 or 1800 017 288.

The Queensland Law Society have a register of approved mediators which can be searched on their website.

Additionally, the Registrar of the Supreme Court keeps a list of approved mediators and case appraisers which outlines their areas of expertise and their fees. This is provided free of charge on request to the Court registry. Parties can choose a mediator or case appraiser not on the register if they agree.

For more information about ADR in the Supreme and District Courts see the courts website.