Alternative Dispute Resolution Getting out of the courtroom Author: Meshal Althobaiti The cost of living is expensive, so too are legal fees. Fortunately there are many options outside of the costly and adversarial legal system where people can exercise their legal rights.
Alternative Dispute Resolution Alternative Dispute Resolution (ADR) is an umbrella term, given to the process by which an independent legal person assists disputing parties to reach a resolution or settlement. There are three primary categories of ADR; facilitative, advisory, and determinative. Facilitative ADR requires the assistance of an ADR practitioner to identify the contested issues and provide options and alternatives to encourage an agreement. Mediation, conciliation, facilitation and facilitated negotiation are all facilitative processes of ADR. Advisory ADR is where a dispute resolution practitioner advises the parties on the law and factual matters, again, with the aim to achieve a resolution. Conciliation is an example of an advisory process. Determinative ADR might involve a formal evidence hearing with the objective of making a determination. An example of this determinative process is arbitration.
Benefits Within courts and tribunals the disputing parties are precluded from controlling the
process whereas the ADR process gives the parties more control over the outcome of the process. ADR is a flexible and practical tool and it aims to resolve parties’ disputes in a cost effective way. Many lawyers encourage participation in ADR to reduce the costs to clients. Additionally the flexibility of ADR can be found in the fact that parties can elect the process they deem appropriate and also elect to choose the ADR practitioner. Unlike court hearings and court decisions which are published and available to the public, ADR is usually private and confidential. This confidentiality and parties using ADR, not being obliged to seek the assistance of a legal practitioner (thus lowering litigation costs) are both incentives for disputing parties to use ADR. ADR is often considered less threatening to participants. Legal rights are given prime attention in courts and tribunals, but in ADR parties can raise their own interests and concerns. The process of ADR is less formal than in courts and tribunals and chances of success are higher than in said traditional processes.
Mediation Mediation is renowned for its informal nature in helping and encouraging parties to solve their issues without the interference of the courts. Mediation aims not to deliver judgements but rather to assist the parties to
Relevant Topic LLAW3241 Dispute Management
Career Pathways: Beyond Legal Practice
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reach a settlement. As a mediator you will cater for both parties by being a neutral third person. To become a mediator you need to complete an accredited Certificate in Mediation. LEADR & IAMA, recognised under the National Mediator Accreditation System (NMAS), are one institution that offers this services. For information on LEADR & IAMA’s certificate see their website: http://www.leadriama.org/ training/mediation-training
Arbitration Arbitration is the process where two or more parties refer their dispute to an independent third party who then makes a binding decision. IAMA again offers a Professional Certificate in Arbitration. See their website for details.
Experience For experience whilst at law school, students should consider an internship or relevant volunteer work. The Southern Community Justice Centre, the South Australian Mediation Services, and the Mediation Office all offer volunteering positions. Students are also encouraged to undertake topic LLAW3241 Dispute Management, taught by Dr Rhain Buth, and participate in the two ADR based competitions offered by the Flinders Law Students’ Association: Negotiation and Meditation. The legal practitioner who practices ADR can expect to find the activity fulfilling and satisfying as ADR is a highly successful alternative to traditional processes. The ADR practitioner can be assured that the client has been spared the often stressful court procedure and had also saved time and money on lengthy legal processes.