Whilst litigation can be an effective method to resolve a dispute, it is expensive, time consuming, stressful and often results in one “winner” and one “loser.”
Alternative dispute resolution offers alternative avenues to resolving disputes and refers to a range of processes where an impartial third party helps people resolve their disputes. In New South Wales, only 3 to 5 percent of civil cases run to final hearing with the vast majority of cases settling through negotiation or Alternative Dispute Resolution.
Alternative Dispute Resolution can be voluntary. However, it can also be court ordered or required as part of a contract. Mediation, conciliation, and arbitration are three key alternative dispute resolution processes that people considering litigation should explore prior to commencing proceedings.
In the following article, we will explore the various alternative dispute resolution processes involved in a litigation.
Mediation is a form of Alternative Dispute Resolution which involves an independent third party, the mediator, assisting the parties identify the issues in dispute, suggest options, consider alternatives and try to resolve their dispute by reaching an agreement. The mediator has no role in deciding the outcome of the mediation but facilitates an open discussion between the parties as to how they can resolve their dispute. The mediator does not provide advice or give their opinion about any of the issues in dispute but will ensure that each party has a chance to talk and be listened to. It is important to note that mediation is not always suitable for all parties, particularly when there is a power imbalance that effects one party’s ability to engage in the mediation process or where a party does not feel safe communicating with the other party.
Conciliation is similar to mediation in that the conciliator is an objective third party who assists the parties in reaching an agreement without making a binding decision for the parties. Conciliation is often part of the Court process, with parties ordered to attend a conciliation conference in an attempt to resolve the dispute without further litigation. It can also be part of a government agency process. Conciliators can have expert knowledge in the area of the dispute which can assist the parties reach an agreement when the subject matter of the dispute is technical. Lawyers and experts may be present and unlike mediation, conciliators may provide the parties with legal information or expert advice in relation to possible options for resolving your dispute.
Arbitration is another form of Alternative Dispute Resolution which involves an independent third party, the arbitrator, making a determination. It is very similar to Court in the sense that the parties present arguments and evidence to the arbitrator and the arbitrator’s decision is binding. What makes arbitration different, ,however, is that arbitration is private whilst court is open, so parties seeking confidentiality as to their dispute can engage in arbitration to resolve their dispute away from the public eye. In highly technical matters, arbitration may be an ideal alternative as the arbitrator can be a specialist in a subject matter.
Benefits of Alternative Dispute Resolution
Alternative dispute resolution can be a great alternative to litigation because it is:
- More time efficient with ADR processes taking weeks or months instead of years in the Court system.
- Cheaper than proceeding with your matter through Court.
- More confidential in that Court proceedings are open to the public including the media.
- Allows the parties to have input into the resolution of their dispute.
- Preserves relationships in that there is less focus on a winner/loser outcome.
- Facilitate more flexible remedies than Court and allows the parties to consider non-legal solutions to their problems.
- More satisfying for participants in that they are involved in the final outcome.
Wrapping Up: The Power of Alternative Dispute Resolution
If you find yourself considering litigation as a process to resolve your dispute, you should also explore alternative dispute resolution as a way to resolve your dispute.
Mediation, conciliation and arbitration are three processes that may assist you reach resolution outside of Court. Depending on the subject of your dispute and the parties’ particular needs, you may choose to engage with one alternative dispute resolution process over another.
At Dettmann Phair Lawyers, our experienced litigation lawyers have engaged in all forms of alternative dispute resolution processes and can assist you choose a more ideal process to resolve your dispute without going to Court. Our team will be able to assist you decide whether mediation, conciliation or arbitration is a viable litigation alternative for you.
We can also represent you at your proposed mediation, conciliation or arbitration and strongly advocate for your rights and articulate your case with precision so that you are loudly heard by the other parties, the mediator, conciliator or arbitrator.