Exploring the Advantages and Disadvantages of ADR in Australia

This essay provides a comprehensive overview of Alternative Dispute Resolution (ADR) within the Australian legal system, examining its advantages such as cost-effectiveness, speed, and flexibility compared to traditional court proceedings. It also addresses the disadvantages of ADR, including potential compromises, variable costs, confidentiality concerns, and time limitations. The essay further explores Justice Michael Kirby's perspective on ADR, highlighting his concerns about the 'vanishing trial,' cost-cutting pressures, variable competence, and the potential for conflicts of interest. Kirby emphasizes the importance of maintaining robust court systems alongside ADR methods to ensure justice and public education. The document, contributed by a student and available on Desklib, offers a detailed analysis of ADR's role and effectiveness in resolving disputes.

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

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It is evident that under the Australian legal system, most of the cases involves civil
disputes are resolved by the method of alternative dispute resolution. In this regard, it is worth
noting that various other disputes were resolved by involving the process of judicial decision and
litigation. However, various proposals were made for the purpose of improving the methods of
alternative dispute resolution. In this regard, for the purpose of improving methods of alternative
dispute resolution, various government policies were implemented at both state and federal
levels. Therefore, alternative dispute resolution has been defined as the process of dispute
resolution involving two or more parties which involves the elimination of lengthy court
proceedings (Bachar and Hensler 2017). The process of alternative dispute resolution has been
applied for the purpose of promoting early settlement in disputes by reducing the expensive costs
involved in litigation. The paper is commissioned to examine the advantages and disadvantages
of alternative dispute resolution and the perspective of Justice Michael Kirby on it.
Alternative Dispute Resolution involves various methods which can be emphasized as-
arbitration, mediation, conciliation and negotiation. From the very beginning, these methods of
dispute resolution have proved to be beneficial in solving disputes under the Rules of Civil
Procedures (Curran, Vernon and Barnett 2017). However, it is generally expected on the part of
the parties to involve themselves in proceedings involving arbitration or other forms of
alternative dispute resolution for the purpose of avoiding court proceedings. In this regard, the
Courts are at the authority to apply the methods of alternative dispute resolution whenever
necessary. In this context, the advantages of alternative disputes resolution can be taken into
consideration. The process involved with alternative dispute resolution is much cheaper as
compared to court proceedings, which involves expensive court fees and complex procedures
(Delgado 2017). Alternative dispute resolution is much quicker and flexible. The process of

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negotiation which is associated with alternative dispute resolution is much quicker than the other
options available as the parties involved in such process solve their disputes by negotiating
certain terms and conditions. It is worth noting that the process of alternative dispute resolution
enforces full control over the parties to dispute within a considerable period. This is because,
once the dispute is referred to the Courts on appeal, then there is no time limit regarding the fact
that when the disputes are going to end. From the very beginning, the process of alternative
dispute resolution is associated with the fact which involves providing appropriate solution to the
parties in dispute. However, the process associated with the alternative dispute resolution is
private in nature which has proved to be effective in dealing with matters involving commercial
regulations. The most important advantage of using arbitration or mediation over court
proceedings is that, in case of court proceedings, the Judge is an expert in legal area (Duffy and
Field 2014). However, he may not have adequate knowledge regarding matters involving
building or disputes regarding civil engineering. Therefore, he relies upon the facts presented to
him. The process of arbitration involves expert arbitrators who possesses sufficient knowledge
regarding the area of expertise and therefore do not rely upon expert evidence. As a result of it,
the proceedings involved in alternative dispute resolution becomes much cheaper and less time
consuming.
It is noteworthy to mention here that in spite of various advantages, a number of
disadvantages are involved with alternative dispute resolution. It is evident that the processes
involved in alternative dispute resolution are dependent upon the capacity of the disputing parties
to compromise. In most of the cases, it can be observed that the parties usually settle their matter
for a considerably less amount and even in some cases; they do not want to compromise at all. It
is worth noting that though the process involved in alternative dispute resolution less expensive

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and less time consuming; in most of the cases the fact is not the same. The process of negotiation
can often bring the parties to dispute in such proceedings which are expensive and at the same
time lengthy and therefore there is no certainty regarding the resolution of the case. It is
worthwhile to mention here that the procedures involved with formal arbitration hearings
involves complex and expensive in nature. This due to the fact that for the purpose of efficient
dispute resolution, trained and expert professionals are required which makes the process
expensive. It is evident that the process involved with methods of alternative dispute resolution is
confidential. However, this proved to be a greatest disadvantage in case if one of the party to the
dispute wants to make a clear reference in relation to the proceedings involved and their
consequences. One of the main disadvantages of alternative disputes resolution is immediacy on
the part of the parties. The methods of alternative disputes resolution has been considered as
unsuitable in case where one of the party to the dispute wants to put an end to the matter. It is
noteworthy to mention here that the proceedings of alternative dispute resolution involve time
limits. In some cases it may be beneficial for the parties however; most of the time the matter
remains unresolved due to time limitation.
The perspective of Justice Michael Kirby can be emphasized as he did not have positive
views on the process of alternative dispute resolution. Justice Kirby were of the view that the
methods of alternative disputes resolution has long term future in Australia however; for the
purpose of solving matters related to commercial disputes, the process of administrative dispute
resolution did not contribute much. Therefore, in this regard, Justice Kirby intended to highlight
various issue associated with alternative disputes resolution. The first issue indentified by him
was the vanishing trial. In this context, Justice Kirby intended to highlight the fact that not every
dispute can be resolved through the process of alternative dispute resolution. This is due to the

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reason that the courts will have the authority to decide matters involving both civil and
commercial disputes. Therefore, Justice Kirby was of the opinion that for the purpose of
preserving and improving the authorization of the courts in deciding matters, disputes of civil
nature are required to solve in public (Kirby 2016). This is due to the reason that if dispute
resolution is conducted in public forum, then it shall educate the public to great extent as public
court plays significant role in educating the community as a whole. Justice Kirby opined that
some disputes involves serious consequences which cannot be left alone to the parties to decide
with the help of alternative dispute resolution. The application of court order and the law applied
by the judicial rulers plays vital role in this regard.
According to his point of view the most important issue associated with alternative
dispute resolution is cost cutting. From the very beginning, it has been argued that the process of
alternative dispute resolution promotes cost savings. However, in recent era, the policy of the
government is to involve cost cutting methods for the purpose of maintaining court institutions
and legal aid services. The vital issue associated with alternative dispute resolution is variable
competence. In this regard, Justice Kirby was of the opinion that, when a dispute has been put
forward before a judicial officer then it is expected that the matter shall be resolved according to
his capacity and experiences of the past. However, in case of alternative dispute resolution, there
can be fear in the minds of the parties regarding retaliation and personal gain which from the
very beginning was never an issue for the judges. It has been efficiently argued that alternative
dispute resolution plays important role in ultimate decision making. However, in case of court
procedures, the judges are at the authority and resolve the case no matter how lengthy it is with
the application of appropriate law. In modern era, in case of procedures involving alternative
dispute resolution, the ultimate motive is to achieve market power. It is known to all that the

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court proceedings in Australia follow the structure of adversarial system. Therefore, it has been
opined by Justice Kirby that for alternative dispute resolution to operate efficiently according to
the existing social environment as the legal professionals are mostly influenced by traditional
methods of adversarial justice.
It has been stated that the purpose of alternative dispute resolution is to promote
confidentiality and public interest however; in certain cases it can give rise to conflict of
interests. It is worthwhile to refer here that in some cases, the matter in dispute has not been
resolved as a result of poor performance on the part of the arbitrators. According to Justice
Kirby, that it is essential to promote the methods of alternative disputes resolution however; it is
necessary to improve the condition of court proceedings so that in future there remains no
conflict between process of alternative dispute resolution and methods of judicial decision
making.

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References:
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.
Curran, L., Vernon, A. and Barnett, P.T., 2017. Reflecting on Community Development
Practices: Improving Access to Justice by Working with Communities to Effect
Change. Flinders LJ, 19, p.37.
Delgado, R., 2017. The Unbearable Lightness of Alternative Dispute Resolution: Critical
Thoughts on Fairness and Formality. SMUL Rev., 70, p.611.
Duffy, J. and Field, R., 2014. Why ADR must be a mandatory subject in the law degree: A cheat
sheet for the willing and a primer for the non-believer. Australasian Dispute Resolution
Journal, 25(1), pp.9-19.
Kirby, M., 2016. Unmet needs for legal services in Australia: Ten commandments for Australian
Law Schools. Law Context: A Socio-Legal J., 34, p.115.