Alternate Dispute Resolution in Australia: Growth, Criticisms, and Access to Justice

This report discusses the growth of alternate dispute resolution (ADR) in Australia, its criticisms, and how it affects access to justice. It covers the different types of ADR, such as mediation and arbitration, and how they are being used to resolve legal disputes. The report also discusses the current practices of law and dispute resolution in at least two different fields of legal practice in Australia.

ALTERNATE DISPUTE RESOLUTION IN
AUSTRALIA

TABLE OF CONTENTS
INTRODUCTION...........................................................................................................................3
MAIN BODY..................................................................................................................................3
The growth of ADR has been criticised as leading to a privatisation of justice..........................3
Increased use of ADR- bulk of legal disputes are resolved behind.............................................5
Doors and access to justice is denied to the most disadvantaged................................................6
ADR in Australia gone too far.....................................................................................................7
Current practice of law and dispute resolution in at least two different fields of legal practice
in Australia...................................................................................................................................8
CONCLUSION..............................................................................................................................11
REFERENCES................................................................................................................................1

INTRODUCTION
Alternative dispute resolution is designed to settle dispute outside the courtroom with
help of impartial third party and the decision is always final and enforceable. In another words,
they are the procedure that are agreed by the two parties to find out particular solution of the
problem. Thus, the services are being used to assist them in reaching the agreement and avoiding
the litigation to maximum extend. Four type of alternative dispute resolution for the Australia
are mediation, arbitration, neutral evaluation and settlement conferences. This report has
discussed about growth of ADR in leading privatism of justice, increased use of ADR that is
bulk of legal disputes are being resolved. Access to justice is most disadvantages, moreover how
far has ADR in Australia has gone so far. Therefore, it represents significant information related
to the current practices, law, legal practices related to dispute resolution in Australia and
internationally.
MAIN BODY
The growth of ADR has been criticised as leading to a privatisation of justice
Private justice system is through the ADR Mechanisms is privatization of civil justice that
is used to resolve the dispute outside of court process allowing both the parties to tailor their
process to incorporate needs of both the parties. So, in short, this offers private dispute resolution
services to the private organisation. In this mechanism the dispute is being resolve by applying
different method such as Conciliation, Arbitration and Mediation. Furthermore, this system
offers informal, cost effective and affordable access to the justice. The main motivate to create
the alternative dispute resolution process is offering better access to justice citizen, specially to
those that have lesser means. So, it does not provide only access to the justice but also ensure
equal access and outcome for better results1. This issue mainly focuses on relationship between
the ADR and access to justice in jurisdiction in countries such as England, Australia, Scotland
and many more. In addition to this, it is the system that is useful for all individuals, business and
government in effectively resolving the dispute that are happening in external environment. This
process enables the parties to easily resolve their dispute without the needs for litigation, at the
same time the court action take often time to find a particular solution of the problem for the both
the parties.
1 (Yaskova,. and Zaitseva, 2017)

On the other hand, it can be stated that in 1980, there are experts that heralded alternative
dispute resolution as sensible and cost-effective way that contribute in keeping the corporate out
of the court. Over, the few years, there are more than 600 large companies that has adapted ADR
policy statement as suggested by centre for public resources and leading is saving time and
money both. But the great hopes of ADR have been faded quickly likewise, In United States, the
damage award, legal billing, number of lawsuits has raised to maximum extend2. The study has
helped in finding out that ADR rather than reducing the overall cost and delay has actually lead
in increasing the same. In current scenario, the alternative dispute resolution has practice too
often mutates into the private judicial system that looks and cost like litigation is supposed to
prevent. At the same time, in many of the companies the ADR procedure include lot many
procedures such as excess baggage in form of motion, judges, lawyers, courts reports,
depositions, expert witnesses and damage award beyond the reason.
Therefore, the ADR has been criticised as leading to a privatisation of justice as since its
incorporation has taken place, the matter is first goes for private justice rather than court made by
government to resolve dispute that are being face by citizen living in the society. For example,
Company A make computer support product, and licensed company B to manufacture the new
devices. This is majorly done in order to expand the market by offering second source of
products, but mid of 1980, A firm has improved its technology and device and refused company
B for manufacturing of new design3. So, company B with threat of losing market share has
lawsuit but no effect on company A so it reverses the engineered new device, manufacture the
same and market its own version. Thereby, Company A has threatened to suit so it contracts and
headed into arbitration that take around 6 to 12 weeks to handle the situation. But for the case it
has five-year marathon having five to six hour of testimony four or five days every single week.
The judge has taken decision on the basis of limited discovery of information or evidence related
to who need to be provided punishment. It has make use of skirted convention, or spend lot of
time as well as efforts in discovery nevertheless. The final judgement was against the company A
that has been asked to appeal court to overturn the decision. Therefore, since till now both of the
companies are fighting with each other to find out particular solution that they could be used in
order to resolve their issue in effective manner.
2 (Noone and Ojelabi, 2020)
3 (MacDermott and Meyerson, 2018)

Increased use of ADR- bulk of legal disputes are resolved behind
Alternative dispute resolution is the method, alternative to litigation in any dispute happening
between the two or more parties pertaining to the civil legal rights and duties. ADR is currently
increasing successful method for resolving the disputes, likewise in between 2017 and 2018,
there were more than 20% of mediations in 2016 while its recent scenario the success rate of
mediation is around 89%. Various court mediation schemes and NHS Resolution are the
scheme-related activity that contributed in increasing almost half success rate of the court4. In
addition to this, with introduce of a free small claims mediation scheme, it has also become
accessible that lead in boosting the dispute resolution rate to 70%. Along with this, the method of
ADR are being continuing growing in popularity but they are not always best suitable for finding
best solution of every type of dispute. Arbitrators and Mediators charge fee for rendering their
respective services and if parties know that there is no chance of winning the case, then it does
not wate time and resource to do the same5. In this, one party may have unfair advantages and
strong arm that lead in unbalanced settlement. It is good alternative for trial but there are some of
the dangerous circumstances that wants immediate court action for example restraining order.
On the contrary, there are other statistic that represent ADR is mainly used to settle
around 65% of case but only 29% of case actually that has been solved by the ADR for smooth
operation of business activities. When ADR has been voluntary then there have been significant
cases that has been resolved as compared to when it became mandatory. Furthermore, through
secondary research it has been identified that alternative dispute resolving only provide one time
solution that is bind to current party as well as current dispute only6. In short it can be stated that
the ADR still remain the solution for choice of resolving the most legal disputes, even if the
number of pending case related to civil are increasing on continuous basis. ADR method has
contributed in reducing the total number of cases that is more than 60% since 1980. Therefore, it
can be stated that the increased use of ADR does not means that bulk of legal dispute has been
resolved effectively. As there are many civil issue that are pending despite of the fact that the
4 (Smith and Haggerty, 2018)
5 (Kumari, 2020)
6 (Bachar and Hensler, 2017)

ADR has provided different method to resolve the issue between the two parties in effective
manner.
Doors and access to justice is denied to the most disadvantaged
As per the legislation, it is right of all individuals on equal basis to have justice or right to
be listening in order to resolve their respective dispute in most effective manner. Justice system
is not always work well for everyone and there are many people that does not have similar access
to the justice system. As there are some of the community sectors that are more vulnerable as
compared to other. Likewise, the reason for deny the equal access to disadvantages people is that
they do not have equal education and literacy level, language barriers, financial constraints and
access to information and digital technology7. Along with that does to have knowledge related to
the right or to whom should be complained about the dispute so that a particular right solution
can be easily determined. Such as, still there is high degree of controversy characterising the
ADR as “access to justice as an issue within Australia’s. As the justice is not being administrated
by the court or it is not part of justice system. Furthermore, the outcome of ADR need not to be
conform about any of the enforceable justice standard, at the same time it is inappropriate to treat
ADR as falling in the rubric of “access to justice”. Therefore, the poor or most disadvantage
people are not having equal open door and access to the justice in order to resolve their dispute in
effective manner.
So, in 1995, the Commonwealth Attorney-General’s Department has issue justice
statement that have four key themes and belief that need to be followed by the ADR. Such as
first is commitment to the equality law, belief to prevent the happening of disputes wherever
possible, providing people to simply and effectively accessing the means to resolve their
respective disputes. While the fourth theme is ensuring services are being delivered in more
effective manner with great awareness of and orientation of consumers8. Therefore, the necessary
steps need to be undertaken to ensure that the justice system is simple, affordable, fair and
accessible to all individuals living in Australia and different parts of the world.
ADR in Australia gone too far
The alternative dispute resolution in Australia has gone far to some extend in terms of
annual growth that is around 6.5% over the five year, and expected to reach around $1.5 billion
7 (Amar, 2021)
8 (Burt, 2019)

with growth of 5.7%. The ADR has gained popularities since mid of 1990 as both the
government as well as the business have gained benefits of settling the disputes outside the
courts. Moreover, the overall increase in the cost of litigation and rising incidence of industrial
action has lead in growing use of industry services9. The ADR is continuously planning to
expand its services to resolve the actual problem faced by the people living in the society10.
Likewise, the demand of conciliation, arbitration and mediation is driven by the rising litigation
cost because most of the company prefer to avoid reputational and legal risk. This is getting large
number of benefits from wide acceptance of the services by the people as it has shown increased
in employees’ engagement, improvement in organisation performance and many more11. Along
with that, the appropriate support being provided by the government in terms of making
mandatory regulation for people to seek alternative dispute resolution services. So it has
promoted the growth and expansion of the dispute resolution services and fulfilling the needs of
people in effective manner.
As per Australian legal frameworks, ADR is the procedure in which a third person helps
people to resolve their disputes. In ADR no judicial determinations such as decisions taken by
courts are involved.
Alternative Dispute Resolution involves the following types of processes:
Facilitative: In this ADR process, the third party which is dispute resolution practitioner
assists the disputing parties to identify the issues of dispute, development options and then
consider alternatives and agree on mutually decided agreement regarding the dispute12.
For example: Mediation
Advisory: In this ADR process, the resolution practitioner provides his advice on the basis
of law, cases or desired outcomes to the disputing parties for appraising the dispute.
For example: Case appraisal
Determinative: In this ADR process, the resolution practitioner evaluate the dispute and
determines a decision. In involves hearing from both the disputing parties including evidences.
For example: Arbitration
9 (Adeuti, 2021)
10 (Tolson, 2021)
11 (Kumari, 2020)
12 Noone, M.A. and Ojelabi, L.A., 2020

Apart from the ADR process, it is considered that ADR has gone too far in Australia. In
order to make ADR work, the managements have to adopt the principles wholeheartedly.
However, alternative methods of dispute resolution can go wrong when the parties involved lack
the commitment which is needed to resolve the dispute. Here in this winning is what matters the
most to the involved parties. Reaching a solution and agreement is not prioritised. Apart from
these, ADR is seen as he on alternative not as the method of choice13. It is considered as
alternative rather than considering it as a primary method for resolving disputes. So some
companies use it only when less important disputes arise. Other than these ADR is viewed as
another form of litigation.
Current practice of law and dispute resolution in at least two different fields of legal practice in
Australia
In Australia, the Legal Service Directions 2002 are the set of binding rules which are issued by
the Attorney General regarding the Commonwealth legal work. The Current practice of law and
dispute resolution in at least two different fields of legal practice in Australia is as follows:
1. The Australian taxation department:
The Australian Taxation department have developed its own dispute resolution
management plan. The plan relays on working in collaboration in order to avoiding and
minimising the disputes and encourage the early resolution as early as possible. This plan focus
on disputes which are related to the debt or other unfair preference claims. The principles and
approach of plan is applicable to other disputes such as tax, complaints, access to information,
employee disputes, procurement, tax and compensation etc. the plan involves following
elements:
Approach:
13 Li, R. and et.al., 2018

The approach of the plan is to avoid and resolve different types of disputes and also to
treat the taxpayers in similar situations with utmost consistency and fair wok14.
Principles of plan:
The key principles of the plan are as follows:
 Assisting in avoiding disputes wherever possible
 Managing the disputes consistently and fairly
 Clarifying the issues in dispute through listening to views of each disputing parties and
considering all the options for resolution
 Resolving disputes in the most cost effective and simplest manner through taking merits
and demerits of each solution into account.
Objectives:
The objectives of dispute resolution management plan of Australian taxation department are
as follows:
 Reducing number of disputes
 Reducing costs to clients as well as own costs
 Providing easier and faster resolution of disputes
 Enhancing and strengthening the relationship with community
 Making the communication with management easier and simpler
Focus area:
The key focus areas and strategies for dispute management related to debt are such as follows:
 Improving services and early solutions: It involves making the process easy and making
it more open and engaged.
 Building capacity: This area involves training and supporting the staff so that they are
able to prevent and resolve disputes 15.
 Enhancing relationships: It concentrates upon working with the community and
insolvency practitioners.
14 Legal Services Directions and guidance notes.
15 Blackham, A. and Allen, D., 2019

Alternative dispute resolution ADR: The management have appointed an independent body for
surveying all the participants involved in ADR processes.
2. Civil Dispute resolution Act, 2011
This Act was commenced on 1 August 2011. In this act the disputing parties are encouraged
to take genuine steps for resolving a dispute prior to commencing various legal proceeding in the
Federal Circuit court. In this alternative dispute resolution process the objectives are as follows:
 To improve the access to justice through encouraging early dispute resolution.
 To promote moves away from the adversarial approach to litigation process.
 To ensure that genuine steps are taken to resolve disputes before the civil
proceedings are held
Genuine step
The Act is very flexible. The genuine steps are those steps which the parties think what
they are regarding the context of certain dispute.
For example: the genuine step might include notifying the other disputing party regarding
the issues which arise in dispute. Offering to discuss with a view to resolve that dispute will be
considered as a genuine step in resolution. Another example can be attempt of negotiation with
the other party of dispute so that some issues or all the issues of dispute can be resolved.
As per the Act both the disputing parties must state which steps they have taken for attempting to
resolve the dispute and also the reasons due to which they have not taken any steps to resolve the
dispute as well16.
Exclusions:
The act is applicable to all the federal matters of Australia unless the proceeding is
excluded from the dispute. The Act excludes various types of proceedings such a criminal
offence, appeals, civil penalty and other proceeding which involves vexatious litigation.
Application
16 Dispute management plan 2013–14

Through the application of this act, there are consequence for the parties who do not
comply with the obligations like cost implications of disputes. Through this Act, the court is
allowed to access of the genuine steps were taken to resolve disputes or not.
Evaluation:
The evaluation of Civil Dispute Resolution Act was conducted from 2021 to 2013
August. Surveys of interested lawyers and alternative dispute resolution practitioners17.
CONCLUSION
From the above report it can be concluded that Alternative dispute resolution is the
responsible for handling all dispute related to the business so that they can smoothly complete
their respective task in effective manner. The study has also helped in understanding that the
ADR has went far too some extend as most of the companies are making use of it to get a
particular solution in limited time and cost. Moreover, it has been learned that there has been
drastic changed in the policies and procedure pertaining to alternative dispute resolution, as now
a days lot of time need to be wastage. At last, it can be concluded that the services offered by
ADR is not provided to all individuals on equal basis that results in disadvantages to the people
that are not able to access the services.
17 Ahmed, S.U

REFERENCES
Books and journals
Adeuti, B. R., 2021. Resolving Office Establishment Dispute in Nigeria through Alternative
Dispute Resolution Mechanism: An Evolving Regime. Sriwijaya Law Review, 5(1).
pp.115-129.
Ahmed, S.U., Income Tax Disputes Resolution through ADR: Bangladesh Perspective.
Amar, C., 2021. Deal Mediation: The Future of Alternative Dispute
Resolution. Konfliktdynamik, 10(2). pp.144-150.
Bachar, G. J. and Hensler, D. R., 2017. Does alternative dispute resolution facilitate prejudice
and bias: We still don't know. SMUL Rev., 70. p.817.
Blackham, A. and Allen, D., 2019. Resolving discrimination claims outside the courts:
alternative dispute resolution in Australia and the United Kingdom.
Burt, K., 2019. Alternative dispute resolution: improving outcomes. TAXtalk, 2019(79). pp.34-
35.
Kumari, P., 2020. Alternative Dispute Resolution (ADR). Available at SSRN 3626625.
Li, R. and et.al., 2018. Community pharmacists’ knowledge and perspectives of reporting
adverse drug reactions in Australia: a cross-sectional survey. International journal of
clinical pharmacy. 40(4). pp.878-889.
MacDermott, T. and Meyerson, D., 2018. Australian tribunals and alternative dispute resolution:
a procedural justice perspective. Civil justice quarterly, 37(4). pp.443-462.
Noone, M .A. and Ojelabi, L. A., 2020. Alternative dispute resolution and access to justice in
Australia. International Journal of Law in Context, 16(2). pp.108-127.
Noone, M.A. and Ojelabi, L.A., 2020. Alternative dispute resolution and access to justice in
Australia. International Journal of Law in Context. 16(2). pp.108-127.
Ozbek, M. S., 2021. Law Political Document in the Field of Alternative Dispute
Resolution. ASBUHFD, 3. p.1.
1

Smith, K. K. and Haggerty, J .H., 2018. Devolved governance and alternative dispute resolution
programs: An example from the Bakken. In Governing Shale Gas (pp. 184-197).
Routledge.
Tolson, S., 2021. Alternative Dispute Resolution.
Yaskova, N. and Zaitseva, L., 2017, October. Application of alternative dispute resolution in the
field of construction projects. In IOP Conference Series: Earth and Environmental
Science (Vol. 90, No. 1, p. 012182). IOP Publishing.
Online references:
Legal Services Directions and guidance notes. [Online]. Available through: <
https://www.ag.gov.au/legal-system/office-legal-services-coordination/legal-services-
directions-and-guidance-notes>.
Dispute management plan 2013–14. [Online]. Available through: <
https://www.ato.gov.au/uploadedFiles/Content/CR/downloads/1FAC6412(1).pdf>.
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