What is Alternative Dispute Resolution

Alternative Dispute Resolution (ADR) is a legal process in which an independent third party assists parties to a dispute to resolve their issues. Each year, many people utilise alternatives to Court to resolve various kinds of disputes. Particularly, ADR can be helpful in resolving family law parenting and property disputes.
 
The word alternative is used as it is understood that the process acts as an alternate option to having a Judge or Magistrate resolve a dispute in Court. All kinds of Alternative Dispute Resolution are private and confidential and discussions had in ADR cannot be used in Court proceedings.

Generally, there are three different types of Alternative Dispute Resolution:

·  Mediation
·  Arbitration
·  Conciliation
 
Mediation
 
Mediation involves the parties to a dispute, their legal representatives and an independent mediator who will ventilate the issues in a matter and help the parties to negotiate a mutual agreement. Mediation is a flexible and less stressful option to Court.
 
Mediation can be flexible in a number of ways, particularly if it is difficult either emotionally or geographically for the parties to be in the same room. Most mediations can occur by telephone with the parties dialled into the same phone call, or by a telephone shuttle, where the mediator speaks to both parties separately by telephone. Mediation can also occur by shuttle with the parties in separate rooms.
 
Mediation can occur before a matter is in Court, or during Court proceedings. During proceedings the Court might make an Order for the parties to attend an ADR conference with the Registrar of the Court, where the Registrar will take the mediator role, and help the parties to resolve their matter on a final basis. If an agreement is reached, the Registrar can make Final Orders by consent.
 
Arbitration
 
In Arbitration, disputes are resolved with the assistance of arbitrators who can make a binding decision to resolve the dispute. Typically, arbitration is more adversarial in nature and involves each party to a dispute presenting their evidence and submissions to the appointed arbitrator.
 
Arbitration is a very technical and involved process and is generally used in complex family law property matters. As arbitration is technical and involves the presenting of evidence it is very important that you have a lawyer for the process.
 
Conciliation
 
Conciliation is often used by the Federal Circuit Court and Family Court in property matters, to resolve the matters on a final basis. The Court organised Conciliation Conference is facilitated by the Registrar of the Court who will act as the mediator.
 
A conciliator has an advisory role during the conciliation process but does not have a determinative role. A conciliator may give advice on settlement terms and make suggestions as to appropriate ways to resolve the dispute. If an agreement is reached, the Registrar can make Final Orders by consent.

Alternative Dispute Resolution can be a better option to entering the judicial system because it can be quicker, cheaper, more flexible, less stressful and may assist in better preserving the relationships between the parties.
 
It also leaves the outcome of the matter up to the people it really effects, the parties. When your matter is in Court, your fate is literally in the hands of the Judge. The Judge does not know you, your ex-partner, your children or your family as well as you do.
 
Often the people best placed to decide what should happen for people, is those people themselves, and Alternative Dispute Resolution allows you to do this.

You can use Alternative Dispute Resolution at any point during your family law matter, if it is a matter appropriate for ADR and both parties agree to participate (or are ordered by a Court to participate). A genuine attempt at pursuing ADR as a way to resolve your parenting dispute is required under the Family Law Act before initiating family law proceedings, unless certain exemptions apply.