Ethan James Hunt
LAW1DR Dispute Resolution
La Trobe University Law School
AGLC referencing style
What does the term ‘Appropriate Dispute Resolution’ mean? What processes does it cover? Why has the term gained such popularity?
In many ways, the term ‘appropriate dispute resolution’ could be seen as merely an acronym among many such as ‘additional’, or ‘assisted’ dispute resolution,1 for the much more common and culturally embedded term, ‘alternative dispute resolution’.2 However, it is much more intricate than a mere acronym. The use of the word ‘appropriate’ encompasses the diverse and distinct nature of each and every dispute, and how different methods of resolution are fitting for different circumstances of disputes. It is a very broad term that covers a wide range of dispute resolution methods other than litigation. In fact, the suitability of the term has been so influential that both legislation, as in the State of Victoria, and Chief Justices3 have advocated from a move away from the use of the word ‘alternative’, and towards ‘appropriate’ dispute resolution.4
While a debate about whether ADR should be referred to as ‘alternative’ or ‘appropriate’ may seem trivial at first, it is significant in that a move towards the term ‘appropriate’, would “signal not only a policy view about the importance of non-court dispute resolution processes but also a recognition that such processes will often support more effective forms of dispute resolution”.5 The fact these resolution processes are referred to as ‘appropriate’, means that there is a clear significance placed on the fact that different models of dispute resolution are appropriate for different circumstances. For instance, one such process would be mediation. Mediation is a process where parties in dispute come together to discuss issues in contention, develop possible outcomes and options to the dispute, and consider any alternative measures to be taken.6 They do this with the assistance of a third-party mediator who is impartial and does not interfere, but merely facilitates discussion between the two parties 7 Mediation is commonly ordered by courts, such as by the Family Court of Victoria where mediation is compulsory prior to escalating the matter to trial. It is also commonly used by tribunals and other resolution bodies, such as the Victorian Civil and Administrative Tribunal (VCAT), as well as the Dispute Settlement Centre of Victoria. The aforementioned significance of whether a resolution method is ‘appropriate’ can be illustrated in this example of mediation. Mediation may be a suitable method of dispute resolution where a continuing relationship is required between the parties, or where a combination of remedies can achieve the plaintiff’s outcome.8 However, mediation may not be the most suitable method of dispute resolution where the parties are emotionally aggravated or not willing to be cooperative, or where there is a power imbalance present such as between employees and employers.9
The term ‘appropriate dispute resolution’, like alternative dispute resolution, is an “umbrella term for processes, other than judicial determination, in which an impartial person assists those in a dispute to resolve the issues between them”,10 and is used mainly in civil proceedings in the form of mediation, conciliation or arbitration.11 Both mediation and conciliation involve two parties who may be legally represented, and involves an independent third party (a mediator or a conciliator). However, unlike a mediator, a conciliator not only facilitates discussion between the two parties, but also offers suggestions to the dispute at hand. In both processes the resolution of the dispute is made voluntarily by both parties, however in conciliation it may be made on the advice of the conciliator. Both are not legally binding, but can be if terms of settlement are made, and both are used by both courts and independent bodies such as VCAT.12 Another ADR method is arbitration. Much like judicial determination, arbitration involves a third-party arbitrator, who listens to the evidence and arguments brought before them by the parties in dispute; and on these points, makes a determination that is legally binding. However, unlike litigation, the environment of an arbitration process is much less formal and is more accommodating to parties, who are not necessarily disadvantaged without legal representation. This method is most commonly used by the Magistrates’ Court for civil claims for less than AUD$10,000 and by VCAT. All these ADR methods are “conducted in a safe and supportive environment”13 and are usually able to be heard much quicker than in a court, whilst simultaneously increasing the timely resolution of disputes in the courts by referring cases to other methods of dispute resolution, thus freeing up their time.
The reason for the increased popularity of the phrase ‘appropriate dispute resolution’ can be attributed to the increased integration of dispute resolution methods other than litigation into the legal system. Mediation is now well integrated into the legal system and is regularly ordered by courts or is compulsory prior to escalating the matter to trial, such as in the Family Court of Victoria. As well as arbitration, which parties are referred to for disputes for less than AUD$10,000. This contrasts with the phrase ‘alternative dispute resolution’ which implies that these processes are an “alternative to the formal justice system”,14 rather than an integral part of it. When the actual fact of the matter is that the vast majority of cases are solved by methods of resolution other than litigation by out-of-court settlements or by way of ADR methods. The popularity of the phrase has also been given enormous traction by the Victorian Law Reform Commission’s Civil Justice Review15 and the subsequent legislation that followed, the Civil Procedure Act 2010 (Vic); which defines appropriate dispute resolution as “a process attended, or participated in, by a party for the purposes of negotiating a settlement of the civil proceeding or resolving or narrowing the issues in dispute”.16
The use of the phrase ‘appropriate dispute resolution’ is increasingly becoming the common term for ADR, away from the traditional term ‘alternative dispute resolution’. ADR encompasses a myriad of dispute resolution processes that are each suitable to different circumstances of disputes and has gained popularity over recent years thanks to the increased usage of ADR methods in the court system, as well as legislative reform, particularly in the State of Victoria.
1 Tania Sourdin, Alternative Dispute Resolution (Thomson Reuters, 5th ed, 2016) 2 [1.10].
2 Michael King, Arie Freiberg and Becky Batagol, Non-Adversarial Justice (Federation Press, 2014) 96.
5 Sourdin, above n 1.
6 Margaret Beazer, Michelle Humphreys and Lisa Flippin, Justice & Outcomes 13e (Oxford University Press, 13th ed, 2014) 332.
8 Beazer, Humphreys and Flippin, above n 5, 332-333.
9 Ibid, 333.
10 National Alternative Dispute Resolution Advisory Council, Dispute Resolution Terms (Paper, Australian Government Publishing Service, 2003) 4.
11 Reazer, Humphreys and Flippin, above n 5, 285.
13 Ibid, 348.
14 Michael King, Arie Freiberg and Becky Batagol, above n 2.
15 Victorian Law Reform Commission, Civil Justice Review, Report No 14 (2008).
16 Civil Procedure Act 2010 (Vic) s 3.
Beazer, Margaret, Michelle Humphreys and Lisa Flippin, Justice & Outcomes 13e (Oxford University Press, 13th ed, 2014)
King, Michael, Arie Freiberg and Becky Batagol, Non-Adversarial Justice (Federation Press, 2014)
National Alternative Dispute Resolution Advisory Council, Dispute Resolution Terms (Paper, Australian Government Publishing Service, 2003)
Victorian Law Reform Commission, Civil Justice Review, Report No 14 (2008)
Civil Procedure Act 2010 (Vic)