International Dispatch: ADR Trends Down Under

Vol. 20 No. 3

By

In recent years, alternative dispute resolution in Australia has expanded greatly. Policy makers have redefined the “justice system” to include the extensive ADR system as well as courts and tribunals, a development that has led to legislative initiatives and a new focus on the quality of ADR processes as well as the timing of their use. Significant systemic reforms, including the establishment of a mediator credentialing system, have supported innovation and growth.

As a result, today more than 850 provider organizations and thousands of practitioners, many of them nonlawyers, work in an ADR network that operates outside Australia’s court system. There is an extensive mandatory pre-litigation ADR system in the family relationships area: Government funding of these services exceeds $82 million (in Australian dollars) annually, so most family disputants can expect to attend some form of mandatory ADR before being able to commence court proceedings. In the context of civil disputes, a myriad of requirements and obligations require would-be litigants to attempt to resolve their disputes as a pre-condition of starting court proceedings.

The Meaning of Justice

Acceptance of ADR is widespread: Businesspeople, members of industry, government officials, and most Australians now understand that many disputes probably will not involve a lawyer and that “justice” will often be sought outside the court system.

Over the last decade, government officials have focused on exploring the objectives of ADR processes and how those processes relate to the conventional litigation system. In 2009, a Commonwealth government report titled “A Strategic Framework for Access to Justice in the Federal Civil Justice System” noted that many litigants cannot afford to start or continue court proceedings. Research on the demographics of those using the civil court system suggests that many disputants will not commence proceedings in higher courts because the system is too complex, costly, or confusing.[1] The report's major recommendation was for the establishment of a strategic framework for access to justice underpinned by the principles of accessibility, appropriateness, equity, efficiency, and effectiveness. A key finding was that an increase in the early consideration and use of ADR, before court proceedings have even begun, can significantly improve access to justice.

In the last decade, several additional reports have reiterated this finding, recommending that potential litigants be required to try to resolve their disputes before heading to court. These recommendations have been supported by efforts of government and industry groups in the financial, insurance, and consumer sectors to develop systems that require pre-court attempts at resolution for various kinds of disputes. Other approaches to support ADR within the justice system include:

•  Improving public and professional awareness of ADR. This involves ensuring that government and industry web sites offer information about ADR, that courts and tribunals enable and support ADR activities, and that legal and judicial education include consideration of ADR.

•  Developing mechanisms to provide high-quality ADR services. These include ways to strengthen existing services and improve data collection, evaluation, and research in the ADR field.

•  Employing ADR in government disputes. Although arrangements differ from state to state, at the federal level, government is now expected to use ADR to resolve disputes with citizens and business and support and report on ADR use.

Credentialing

Partly because bringing together key stakeholders in this nation of about 23 million people was easier than it might have been in more populous countries, issues relating to training and accreditation are now somewhat settled in Australia. The National Mediator Accreditation System (NMAS), which is a voluntary “opt in” system, became operational in Australia in January 2008, after more than a decade of discussion about mediation accreditation and the development of standards for mediation practice.[2] In the area of family conflict, the Family Dispute Resolution Practitioner (FDRP) accreditation system has been phased in since 2007, following extensive changes to the national Family Law Act.[3]

The two accreditation systems provide clear guidance for practitioners. Those who have opted in to the NMAS and meet the qualifications for accreditation are listed on the National Register of Mediators. In 2011 the National Mediator Standards Board instituted a fee of $100 (Australian) collected every other year from mediators on the registry.

The separate FDRP system has its own qualifications and process, but because the two programs overlap significantly, a practitioner who has opted in to the NMAS usually finds that getting accredited as a family dispute resolution practitioner requires additional training but is otherwise fairly straightforward.

Evidence

In terms of the evaluation of ADR processes, a number of studies have provided considerable evidence to support the extension of ADR into a range of practice areas. Policy initiatives have also supported gathering evidence on ADR processes. For example, in 2009, the National Alternative Dispute Resolution Advisory Council (NADRAC)[4] released its report “The Resolve to Resolve – Embracing ADR to Improve Access to Justice in the Federal Jurisdiction,” which focused on the supporting structures and cultural change required to enable ADR to continue to grow. The report concluded that specific legislation supported cultural change and that better measurement systems will help provide evidence about how ADR can be used most effectively.

This work and the core objectives have informed the government-led project “Building an Evidence Base for the Civil Justice System,” which is creating overarching objectives and criteria to help measure justice and the impacts of ADR and will support the collection of common data across the system. Better and clearer definitions of ADR processes have also helped increase public understanding and allowed for comparison of studies and work in different ADR areas (although there is still variation in terms of practice).

Conclusion

In addition to experiencing growth in court and community-based dispute resolution systems, ADR has become institutionalized in all sectors within Australia. Although the creation and proliferation of professional organizations have contributed, much of the expansion of ADR in recent years has been led by government and industry, not by lawyers and court officials.

Government is more inclined to support mandatory ADR referral if they have confidence that the processes will be high quality, and the National Mediator Accreditation System, designed to enhance consumer confidence and support mediation referrals, has led to increased use of mediation and additional consideration of pre-action or pre-filing protocols. In some cases, these developments have been coupled with “good faith” and “genuine effort” requirements to ensure that recalcitrant disputants understand that they have obligations to engage in a sincere and genuine manner when involved in ADR.  

The more sophisticated legislative and institutional frameworks have provided more certainty for other dispute resolution processes. For example, recent legislation has focused on supporting a range of arbitration approaches, including Med-Arb arrangements. These changes all reflect an intention to have workable, high-quality ADR options available at all points in a dispute’s life cycle.

Tania Sourdin is Professor of Law and Director of the Australian Centre for Justice Innovation (ACJI) at Monash University in Victoria, Australia. She can be reached at tania.sourdin@monash.edu.

 

[1]See Access to Justice Taskforce, Attorney-General’s Department, A Strategic Framework for Access to Justice in the Federal Civil Justice System 13-31 (2009), available at http://www.ag.gov.au/LegalSystem/Documents/A%20Strategic%20Framework%20for%20Access%20to%20Justice%20in%20the%20Federal%20Civil%20Justice%20System.pdf.

[2] See Tania Sourdin, Accrediting Mediators – The New Australian National Mediator Accreditation Scheme (Austl. Ctr. Just. Innovation, Working Paper, Sept. 2007), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1134622.

[3] Family Dispute Resolution, Austl. Gov’t, http://www.ag.gov.au/FamiliesAndMarriage/Families/FamilyDisputeResolution/Pages/default.aspx (last visited Dec. 20, 2013).

[4] NADRAC, The Resolve to Resolve – Embracing ADR to Improve Access to Justice in the Federal Jurisdiction (Sept. 2009), available at http://www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Documents/NADRAC%20Publications/the-resolve-to-resolve-embracing-adr-improve-access-to-justice-september2009.pdf.

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