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Alternative Dispute Resolution Notes

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III Alternative Dispute Resolution

ADR are processes, other than judicial determination, in which an impartial person assists those in dispute to resolve the issues between them. (National Alternative Dispute Resolution Advisory Council, NADRAC)

* Note: NADRAC definition encompasses formal ADR, but ignore informal negotiation. Relation of Litigation to ADR

* Majority of disputes resolved through negotiation or other means of ADR.

* Even where legal proceedings commenced, more than 90% were settled before trial.

* Courts may refer litigation to mediation, arbitration, expert determination or referees.

* Legislation may require ADR prior to commencing litigation.

* Option to litigate informs ADR process. ADR and Indigenous communities

* Implementing models for dispute resolution within their own communities.

* Recognising traditional cultural values.

* Using traditional structures of decision-making. Reasons for Growth of ADR

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Difficulties 'accessing justice' through adversarial litigation (page 1) Litigation deterrents --- emotional, time and money costs (page 4) Desirability of addressing broader (non-legal) interests and needs of parties. Desire to preserve 'relationships'.

Advantage of ADR

* Parties have increased control

* control over process

* control over outcome

* control over costs

* control over participation

* control over delay

* choice over independent decision maker/assistant

* Relationships can remain intact

* compromise rather than win/lose

* ADR approaches can be "interest based" rather than "positional" leading to possible win/win solutions instead of win/lose or lose/lose.

* interest-based: parties begin with the problem and focus on their needs: theorised to lead to solutions which do not immediately appear from positional bargaining.

* positional: horse-trading, parties move incrementally towards agreement. (OL 128)

* BATNA = Best Alternative to Negotiated Agreement informs positional negotiation but is not the basis for settlement.

* more co-operative thus less 'adversarial'

* Reputation can be protected: confidential Disadvantage of ADR

* Not suitable for some cases, for example, test cases. 1

III Alternative Dispute Resolution

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Lack of procedural protection, i.e., reasons, evidence, appeals. Lack of enforceability. Less access to other side's information. May increase cost, if unsuccessful. May add to delay, therefore should be used tactically.

* No procedural 'fairness'. Circumstances in which parties undertake ADR From voluntary to involuntary

* Ad hoc: can occur either before commencing proceedings, during preparation for trial, or during trial;

* Contractual: usually occurs before commencing proceedings;

* Court ordered: can occur either during preparation for trial, during trial as part of trial;

* Legislatively required: usually before commencing proceedings. ADR and Case Management

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ADR can be part of litigation case management process. Referral to ADR -- initially outside the court system now integrated into the court system. Court can refer to mediation without consent. Court can refer to arbitration or referees. Pre-litigation protocols also potentially case management.

Types of ADR (classified by NADRAC)

* Facilitative processes: A third party provides assistance only in the dispute management process. Examples: mediation, conciliation, Ombudsmen

* Determinative process: A third party makes a determination on the dispute based on arguments & evidence. Examples: (enforceable) adjudication, arbitration, expert determination, private judging (not enforceable) fact-finding, early neutral evaluation

* Advisory: Examples: expert appraisal, case appraisal, case presentation, mini trial, early neutral evaluation, collaboration

* Hybrid: combination, for example, mediation/arbitration Most Common Examples of ADR Informal Negotiation Negotiation involves no third party whose role is to facilitate.

* Positional negotiation is the zero-sum game approach to negotiation where one party's gains are another party's losses. 2

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