Alternative Dispute Resolution in Law: Effectiveness Compared

This essay analyzes the significance and effectiveness of Alternative Dispute Resolution (ADR) processes compared to traditional court proceedings. It explores various ADR mechanisms, including negotiation, mediation, conciliation, and arbitration, within criminal, family, and workplace contexts. The essay highlights the benefits of ADR, such as flexibility, interest accommodation, and relationship preservation, particularly in criminal justice, where methods like family group conferencing and victim-offender mediation are discussed. It examines the application of ADR in family law, emphasizing the role of Family Dispute Resolution (FDR) and its benefits, while also addressing challenges like power imbalances. The document also covers ADR in workplace disputes, highlighting its importance in maintaining employee well-being and organizational productivity, along with the role of negotiation, conciliation, and industrial tribunals. The essay emphasizes the need for adapting ADR programs to specific community requirements, while acknowledging the limitations of ADR processes.

Running head: ALTERNATIVE DISPUTE RESOLUTION IN LAW
Alternative Dispute Resolution in Law
Name of the Student
Name of the University
Author Note

1ALTERNATIVE DISPUTE RESOLUTION IN LAW
Alternate Dispute Resolution is always the best option for resolution of conflict
The Commonwealth Constitution that was enforced in Australia in 1901 entailed
conciliation and arbitration as both preventive and settlement methods of industrial disputes. The
term ‘alternative dispute resolution’ refers to different forms of dispute resolution mechanisms
that are used as an alternative to the court proceedings. The thesis statement of this assignment is
to establish the significance and effectiveness of the ADR process in resolving conflicts or
disputes in comparison of the court processes1. This essay shall discuss about various Alternate
Dispute Resolution [ADR] mechanisms that are used to resolve conflicts in the criminal family
or workplace context. It shall also entail reasons for considering ADR as the most appropriate
means of resolving such conflicts.
It is essential for a conflict resolution practitioner whether he or she is a lawyer,
conciliator, mediator, arbitrator or other conflict resolution practitioner to comprehend the
conflict dynamic as only then they would be able to assist people to resolve or mange their
conflict constructively2. The term conflict may be defined as a form of interacting where a
person finds himself or herself under some kind of threat that is perceived to affect the collective
or personal goals of such person. In Australia, people usually seek assistance from third party
instead of courts to resolve their conflicts.
The term alternate dispute resolution refer to every facility to settle negotiation where the
disputants are encouraged to engage in direct negotiation with each other before resorting to any
1 Goldberg, Stephen B., et al. Dispute resolution: Negotiation, mediation and other processes. Wolters Kluwer Law
& Business, 2014.
2 Ahmed, Masood. "Bridging the gap between alternative dispute resolution and robust adverse costs orders."
Contemporary Readings in Law and Social Justice 8.1 (2016): 98.

2ALTERNATIVE DISPUTE RESOLUTION IN LAW
other legal process3. It also includes other mini-trials or arbitration system that is similar to a
courtroom process. The various arbitration dispute mechanisms include negotiation, prevention,
mediation, conciliation, ombudsman, arbitration, neutral evaluation, courts and tribunals
(litigation).
These various forms of ADR processes have been designed to deal with community
development issues, manage community tensions. It is important to differentiate between non-
binding and binding forms of ADR. Negotiation, conciliation and mediation resolution
mechanisms are considered non-binding programs and is dependent on the readiness of the
disputants to reach a deliberate agreement. Binding ADR processes include a third party decision
that is binding upon the disputants even if they do not agree with such decision, similar to a
judicial decision whereas a non-binding arbitration includes a decision that may not be binding
upon the disputants4. There is a distinction between voluntary and mandatory processes in the
context of dispute resolution mechanisms. On one hand, some judicial systems require litigants
to mediate, conciliate, negotiate or arbitrate before resorting to court proceedings. On the other
hand, in voluntary processes, resolving disputes through ADR processes depends on the will and
consent of the disputants.
The use of non-traditional dispute resolution processes have been widely accepted in
several dispute contexts. Similar processes have been applied in the context of criminal justice
forming a part of overall criminal justice reforms5. Across international and Australian
jurisdictions, a variety of alternate methods has been developed to deal with the criminal
3Ahmed, Masood. "Bridging the gap between alternative dispute resolution and robust adverse costs orders."
Contemporary Readings in Law and Social Justice 8.1 (2016): 98.
4Kimbrough, Erik O., et al. "Commitment problems in conflict resolution." Journal of Economic Behavior &
Organization 112 (2015): 33-45.
5 Behrens, Martin, et al. "Systems for Conflict Resolution in Comparative Perspective." (2017).

3ALTERNATIVE DISPUTE RESOLUTION IN LAW
offenders. Some of the alternate methods include family group conferencing, victim-offender
mediation and circle sentencing. These programs have been applied in the Australian
jurisdictions and conferencing particularly has become a commonly used method to deal with
criminal offenders in Australian the jurisdictions.
The application of the ADR processes in the criminal context has emerged into the
western countries as a completely new phenomenon. The growing interest in the application of
ADR process to the criminal justice system emerged from the discontentment with the
conservative adversarial dispute resolution methods6. Traditional theories of criminal justice
perceive criminal offending as a significant matter between the state and the offender. In the
context of criminal justice system, the ADR processes may take place at different stages of
criminal process. it can be in the form of a diversion from the court proceedings or they can be
applied as a procedure equivalent to court procedures.
The application of ADR mechanisms is often considered as a better means to resolve
conflict because it seeks to avoid ‘blaming’ and emphasizes on compromise and conflict. The
ADR processes like victim-offender and conferencing seeks to obtain the best outcome for all
the parties in the form of procedural flexibility, interest accommodation, relationship
preservation, contextualization and active participation. The application of conferencing as
ADR mechanism to deal with the criminal offender is equally beneficial as the application of
informal methods of justice. The ADR specifically aim at attaching the ‘stigma’ to the criminal
act instead of the offender accused of the criminal act with the objective to achieve the
acceptance of accountability.
6Spencer, David, and Samantha Hardy. Dispute Resolution in Australia: cases, commentary and materials. Thomson
Reuters, 2014.

4ALTERNATIVE DISPUTE RESOLUTION IN LAW
The application of ADR processes within the criminal justice system is often related to
restorative justice movement that aims at shifting the emphasis from the notion of violation of
state and punishment towards reparation of the offender and makes him incur a sense of
responsibility towards the victim and the society as well7. The propagation of different ‘alternate’
criminal justice processes have emerged due to the implementation of reforms like cost-
effectiveness, case management, efficiency and the desire to develop a more culturally flexible
and appropriate system to deal with the offenders, particularly, juvenile and indigenous
offenders.
Traditional criminal justice sanctions shame offenders without providing them with any
form of reconciliation, thereby, secluding the offender from the community, which strengthens
the criminal behavior. However, that shame may be used in a constructive manner within a
family and community context that offers such offenders with reconciliation opportunities.
Conferencing as and ADR process enables offenders to enter into positive conversation with the
victim as well as the community members regarding their behavior assisting them to restore self-
respect and self-worth, taking a step closer to re-integration within the community8.
However, it is challenging to strike a balance between the victims and the offenders while
adopting ADR process of Conferencing. While the attempt to maintain a balance between the
rights of the victim and the offender is the motivation for implementing ADR processes in the
criminal justice system, it must also be comprehended that inequalities on large scale cannot be
resolved immediately by adopting conferencing. Nevertheless, though conferencing serve as a
7 Parkinson, Patrick, and Judy Cashmore. "Reforming Relocation Law: An Evidence‐Based Approach." Family
Court Review 53.1 (2015): 23-39.
8 Johnsen, Peter, and Elia Robertson. "Protecting, Restoring, Improving: Incorporating Therapeutic Jurisprudence
and Restorative Justice Concepts into Civil Domestic Violence Cases." U. Pa. L. Rev. 164 (2015): 1557.

5ALTERNATIVE DISPUTE RESOLUTION IN LAW
normative and educative function in the end but it is mandatory to strike a balance between the
rights of the disputants to achieve the desired balance.
There has been a rise in the use of family dispute resolutions to resolve disputes related to
family violence. The Commissions consider the use of ADR processes in family violence, child
protection matters and family law. The Commissions assess the family law framework for FDR
after considering risk assessment and screening assessment practices, collaboration and
cooperation between Family Dispute Resolution (FDR) lawyers and practitioners as well as it
examines the development in the culturally responsiveness of the FDR9.
It has been observed that the distinction between child protection issues, family violence
and family laws do not always demonstrate facts that the families experience through family
violence due to which the issues often overlap with each other. Consequently, the Commissioner
considers the effectiveness of ADR processes to provide effective and seamless resolution for the
issues arising from family violence. The Australian government has been strongly in favor of
using the ADR mechanisms to resolve child protection disputes and issues related to family law.
The application of the FDR mechanisms provides a resolution procedure that is both
flexible and accessible which fulfills the diverse interests, need and concerns of the disputants.
Where parties to the dispute are victims or are subjected to risk of family violence, the
implementation of FDR processes significantly contribute to the possibility of attaining effective
and sustainable results10. The reforms in the Family Law Act in 2006 have stipulated the use of
the ADR processes where parties with dispute related to children are required to resort to FDR
mechanisms before approaching court and must make reasonable efforts to resolve the disputes
9 Singer, Linda. Settling disputes: Conflict resolution in business, families, and the legal system. Routledge, 2018.
10Van Gramberg, Bernadine, et al. "A Changing World of Workplace Conflict Resolution and Employee Voice: An
Australian Perspective." (2017).

6ALTERNATIVE DISPUTE RESOLUTION IN LAW
through such alternative mechanisms. The only exception this requirement is that if the parties to
the dispute have consented to approach the court to obtain a consent order. According to section
13C of the Act, the court may refer the parties to dispute to family counseling or approach FDR
processes at any stage of the court proceedings either on its own (suo motto) or on an application
by either party or an independent lawyer of children11.
Although there may be certain difficulties while using FDR processes in the context of
family violence such as the offender may use FDR processes for committing intimidation or
violence against women and child. There may be power imbalances in relationships affected by
family violence may weaken the fairness of the negotiating process. However, despite such
challenges, there are other advantages of using FDR processes to resolve family violence related
disputes, which make it an appropriate means of dispute resolution12. Firstly, the FDR processes
are quick and cheaper than the court proceedings. Secondly, FRCs in Australia provides three
hours of mediation without imposing any charge and many other services are rendered at
considerable charges. Thirdly, government and service providers have been trained as FDR
practitioners who conduct such ADR processes with considerable safeguards that may result
positive outcome of for people who have been subjected to domestic violence.
The concept of state-sponsored arbitration and conciliation to resolve workplace disputes
is embedded in the history of Australia. The Conciliation and Arbitration Act 1904 was enacted
to resolve the industrial disputes through the alternate dispute resolution processes. The
fundamental characteristic of the statute is that it is legally mandatory to inform relevant tribunal
about any industrial dispute that arises. While in practice, the parties themselves resolved minor
11 Hamberger, Jonathan Marc. "Workplace dispute resoltion procedures in Australia." (2015).
12 Saundry, Richard, Paul Latreille, and Ian Ashman, eds. Reframing Resolution: Innovation and Change in the
Management of Workplace Conflict. Springer, 2016.

7ALTERNATIVE DISPUTE RESOLUTION IN LAW
issues without referring them before the tribunal but after notification, the process of informing
tribunals becomes mandatory to ensure that tribunals could force the disputants to participate in
ADR processes and impose a legally binding outcome.
In any organization, there are two categories of disputes in the workplace, namely,
internal and external. Internal disputes in the workplace takes place between employees and
management and between employees. External dispute takes place between outsiders and
organization such as the contractors, consumers or regulatory bodies.
ADR mechanisms may take place in the organizational workplace when a dispute arises
in a workplace between any members such as sexual harassment, unfair dismissal, job
dissatisfaction, human resource issues, and co-worker relationship issues13. The primary reason
for using ADR processes in an organization is that bullying or creating conflict at workplace is a
threat to the safety, health and welfare of the employees. It may have adverse repercussion on
employers both legally and financially which may lead to poor productivity of the organization
further resulting in legal expenses of the company in case of significant harassment and bullying
cases.
The ADR process like private mediation is appropriate for resolving disputes arising
between employees or employees and management as this process would ensure confidentiality
and it shall include engagement of HR manager who would assure that the agreement between
the two disputants are strictly adhered to, keeping it confidential14. Negotiation takes place to
resolve any disagreement especially when it takes place between parties who listen to and are
13 Behrens, Martin, et al. "Systems for Conflict Resolution in Comparative Perspective." (2017).
14 James, Natalie, and Fair Work Ombudsman. "Commonwealth of Australia." (2015).

8ALTERNATIVE DISPUTE RESOLUTION IN LAW
heard by each other or are ready to resolve the disputed issues by developing options to resolve
each issue.
Conciliation is a process similar to mediation although the role played by the conciliator
is more advisory and directive. Industrial tribunals aim to settle a dispute in a fair, efficient and
quickly as compared to court procedures. In court proceedings, a magistrate or a judge shall
make a decision regarding the dispute based on law of the land, which is not only time-
consuming but is a more formal process15.
From the above discussion, it can be inferred that given the significant level of
jurisdictional disparity with respect to the ADR processes and programs, the programs must be
adapted as per the requirement of particular communities. Although there are limitations
associated with ADR processes such as non-uniformity, inaccessibility to different ADR
programs, but flexibility in such programs can be considered beneficial for the programs to
achieve its desired outcomes. It is a fact that ADR processes are less formal, cheap and provide
quick remedy to the grievances as compared to court proceedings, it is still important to
determine the most appropriate ADR mechanism that would resolve the dispute concerned,
achieving desired outcome.
15 McKenzie, Donna Margaret. "The role of mediation in resolving workplace relationship conflict." International
journal of law and psychiatry 39 (2015): 52-59.

9ALTERNATIVE DISPUTE RESOLUTION IN LAW
References
Ahmed, Masood. "Bridging the gap between alternative dispute resolution and robust adverse
costs orders." Contemporary Readings in Law and Social Justice 8.1 (2016): 98.
Behrens, Martin, et al. "Systems for Conflict Resolution in Comparative Perspective." (2017).
Behrens, Martin, et al. "Systems for Conflict Resolution in Comparative Perspective." (2017).
Goldberg, Stephen B., et al. Dispute resolution: Negotiation, mediation and other processes.
Wolters Kluwer Law & Business, 2014.
Hamberger, Jonathan Marc. "Workplace dispute resoltion procedures in Australia." (2015).
James, Natalie, and Fair Work Ombudsman. "Commonwealth of Australia." (2015).
Johnsen, Peter, and Elia Robertson. "Protecting, Restoring, Improving: Incorporating
Therapeutic Jurisprudence and Restorative Justice Concepts into Civil Domestic Violence
Cases." U. Pa. L. Rev. 164 (2015): 1557.
Kimbrough, Erik O., et al. "Commitment problems in conflict resolution." Journal of Economic
Behavior & Organization 112 (2015): 33-45.
McKenzie, Donna Margaret. "The role of mediation in resolving workplace relationship
conflict." International journal of law and psychiatry 39 (2015): 52-59.
Parkinson, Patrick, and Judy Cashmore. "Reforming Relocation Law: An Evidence‐Based
Approach." Family Court Review 53.1 (2015): 23-39.

10ALTERNATIVE DISPUTE RESOLUTION IN LAW
Saini, Michael, et al. "Understanding Pathways to Family Dispute Resolution and Justice
Reforms: Ontario Court File Analysis & Survey of Professionals." Family Court Review54.3
(2016): 382-397.
Saundry, Richard, Paul Latreille, and Ian Ashman, eds. Reframing Resolution: Innovation and
Change in the Management of Workplace Conflict. Springer, 2016.
Singer, Linda. Settling disputes: Conflict resolution in business, families, and the legal system.
Routledge, 2018.
Spencer, David, and Samantha Hardy. Dispute Resolution in Australia: cases, commentary and
materials. Thomson Reuters, 2014.
Van Gramberg, Bernadine, et al. "A Changing World of Workplace Conflict Resolution and
Employee Voice: An Australian Perspective." (2017).
Wallensteen, Peter. Understanding conflict resolution. Sage, 2015.