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Alternative Dispute Resolutions Litigation What is an alternative dispute resolution?
ADRs are designed to resolve civil disagreements between two parties through a number of processes before litigation (court).
There are five major reasons why ADRs are so popular/encouraged;
-It is more cost effective
-It is more time effective
-The resolution is done in confidentiality
-There is greater choice over who/what is involved
-It reduces the number of unnecessary cases entering the courts
-Civil Dispute Resolution Act 2011 NSW forces genuine attempt to solve disputes via ADR processes Arbitration Non ADR Negotiation 'I want $500
for my leg' 'My dog didn't
touch you!' 'His dog did this..!' Mediation 'He didn't
do that!' 'I will require
all of my
experience here..' 'Sir his dog
bit my leg-' 'My dog wouldn't
bite a-' 'One at
a time!' -Negotiation can range from very informal discussions between friends to formal discussions between both parties with representatives (such as highly trained specializing professional negotiators)
-Strategies and tactics exist
-Ultimately, all parties are aiming to satisfy their own interests.
-Both parties must be prepared to concede something from their original aim, with the ultimate aim to reach a compromise whereby all parties are satisfied
-It is the cheapest of all the ADRs and can involve no costs or additional parties -Strict confidentiality is a major advantage of negotiation -Mediation is a tactic to solve disputes whereby a neutral third party, the mediator(s), are hired to negotiate and reach an agreement, both legally enforced and voluntarily.
-The greatest difference to negotiation is the 'timetable', structure and formality it possesses.
-The mediator is a neutral third party and acts simply to stimulate, encourage and control conversation and formulate ideas, not to make decisions or provide financial or expert advice.
-Mediation is most popular in solving family disputes, workplace disagreements and housing disputes.
-A cheaper and faster option than the arbitration process. Usually, but not strictly, ADRs involve a neutral third party If the earlier ADR procedures to not produce results, this is the final step in
achieving a resolution.
A plaintiff takes the defendant to court demanding compensation for losses as a result of the defendant's action -Arbitration can be either mandatory or voluntary, with a neutral 'arbitrator', a usually specialized expert third party making a usually binding legal decision.
-In NSW, governed by the Commercial Arbitration Act 1984.
-In more complex cases there can be multiple arbitrators.
-it is a court-like process but is cheaper and faster than litigation.
-Both parties have the opportunity to present their cases, and are usually represented.
-Options to appeal decisions exist, are usually limited
-Decisions can be made in confidentiality.
-Final ADR The decision made is binding and therefore must be either be accepted by both parties or appealed through the required avenues Problem Resolved! Through an ADR such as
-Arbitration or the non ADR Litigation -The process is usually done in confidentiality, with only the mediators informed The four main types are:
& Arbitration Conciliation -Similar to mediation, however the conciliator is hired specifically to relay messages between the two parties, as usually they are on non speaking terms. This lowers tension, provides technical assistance and helps achieve a solution.
-They encourage each party to make a prioritized list of objectives which they use to go to back & forth between the two.
-This is the cheapest way for two parties to solve their differences without directly communicating.
-Like mediation, it is confidential and controlled compared to litigation or even arbitration, and has no compulsory legal standing, unless specifically agreed upon 'Tell him..' 'Tell her..' 'He said..' 'She said..' References - The National Alternative Dispute Resolution Advisory Council (NADRAC) offer support and information for practitioners and potential users, including certified third parties.
-The Institute of Arbitrators & Mediators Australia (IAMA) serves the community in providing the most qualified practitioners of ADRs (especially arbitration & mediation) to Australians. It is the most costly and lengthy of the processes and should only be used as a last resort between two parties who have failed to settle their differences. ADR's are cheaper, more time efficient and information remains confidential. Who is involved can be controlled, and parties have more of a say in outcome -No compulsory legal standing -No compulsory legal standing