'Alternative Dispute Resolution': What is it and what you need to know

'Alternative Dispute Resolution': What is it and what you need to know

Posted by Becker Watt Lawyers on Thursday, September 10, 2020

What is Alternative Dispute Resolution and how relevant is it to our viewers?

Alternative Dispute Resolution (ADR) is an alternative way of resolving disputes between parties. It is cost-effective and doesn’t involve going to court.

Alternative Dispute Resolution generally allows for the parties to discuss the issues that have led to a dispute and have their say in the outcome of it. Rather than leaving the decision to a court or tribunal, this takes into account all of the circumstances that each side has to achieve a commercial agreement.

Most contracts have an ADR clause that allows the parties to use one of the various ADR methods.

What are the various types of Alternative Dispute Resolution methods and what do they mean?

  • Negotiation – Two parties in a dispute can meet in an informal setting to discuss their issues, with or without legal representation. If they come to an agreement, then the dispute is resolved, and they can move on.
    Advantages include:
    • Fast method
    • Cost-effective
    • Confidentiality – Not subject to a published decision, as a court matter is
    • Likely to preserve the relationship of the parties
  • Expert Determination – The parties can agree to appoint an independent third party who has expertise in the subject matter. That party will determine the dispute on the basis of their expertise.
    Advantages include:
    • Can be an inexpensive way to answer a technical style or valuation question
  • Mediation – Allows for a neutral third party to assist in the resolution of a dispute. A mediator is appointed to review the position of each party. They’re not there to provide legal advice or make decisions, however they can assist the parties with some perspective to reach a decision.
    Mediation can be used for the following matters:
    • Domestic building disputesIf it is referred to QCAT, VCAT or NCAT, then there is a compulsory conference (mediation). The compulsory conference is chaired by an experienced member of the tribunal who will help the parties seek resolution.
    • Family law – Often used to see if parties can reach an agreement before going to court (about property matters, child custody, etc)
    • Wills and estatesFamily provision claims can be determined by the parties in a mediation before it ends up in the court.

Is the outcome of an Alternative Dispute Resolution process binding?

Yes, most often the outcome is binding. However, there can be exceptions to the rule.

For tailored advice and services, contact a Trusted Legal Advisor today at info@beckerwatt.com.au, 1300 AT LEGAL or book a consultation online.