• ADRA has recently responded to requests for comments
• on the NADRAC Issue Paper on ADR in the Civil Justice System,
• on the NSW Attorney General’s ADR Blueprint discussion paper and
• on the Victorian request for comment form VCAT.
• See these links below:

• ADRA’s Response to
• ADR Blueprint Discussion Paper

• Proposal 1 Establish an ADR Directorate within the NSW Attorney General’s Department to coordinate, manage and drive ADR policy, strategy and growth in NSW.
• ADRA support s centralisation of policy and strategy within an ADR Directorate. We support any initiative which will enable the ADR Directorate to work effectively with other Directorates to achieve a cultural change within the Attorney General’s Department, as well as the public and private sector broadly, to embrace dispute resolution principles and practice.
•  Located in the Attorney General’s Department, the ADR Directorate is ideally placed to lead the NSW government’s strategic direction, ensuring the practical implementation of government policy. It may become a centre for data collection and analysis, aiding the future course of dispute resolution. The ADR Directorate is an excellent concept which needs to be adequately resourced and funded, including physical space, organisational facilities, secretarial, computer and research support.
• A strong relationship with NADRAC is important for the ongoing success of the ADR Directorate, as is ongoing consultation with stakeholders and a transparent decision making process.
• Proposal 2 Provide better information to consumers about non-court options to resolve disputes. Position LawAccess as a ‘one stop shop’ for information about dispute resolution services for consumers and business.
• Positioning LawAcces as a one-stop shop for information about dispute resolution for consumers, including businesses, is a sensible and practical move and would form part of the community education process necessary to encourage the greater use of a range of appropriate dispute resolution processes. Information about LawAccess needs to be more widely available, with a particular emphasis on areas of high need including ethnic communities, rural and remote communities.
• We support the expanding role of Law Access in promoting best practice in dispute resolution in conjunction with other legal information. We would wish to see information available that is relevant to our diverse cultures. Adequate resources and ongoing consultation with relevant stakeholders would be important elements to ensure success.
• Proposal 3 Provide consumers with resources about how they can resolve disputes themselves, including ensuring existing resources are easily accessible.
•  ADRA supports any public information campaign that will provide consumers with relevant resources that simplify the message about dispute resolution and the different types of dispute resolution available. We believe that the community needs education and resources to move the emphasis from the State resolving issues through the courts to encouraging people to make their own decisions to resolve disputes, with the assistance of a qualified mediator or facilitator, as appropriate.
• If existing resources refers to Community Justice Centres and the like, ADRA strongly support this move. In doing do we recognise the need to provide more resources to support such centres. Increasing demand will cause longer waiting lists unless resources are increased proportionate to the expected growth in demand. It is well accepted that the work of localised dispute resolution services can have a profound effect on the satisfaction levels of individuals and the community. Mediators should be adequately remunerated for their services through in community based programs, recognising the diversity of work and skills required to handle the complexity of disputes as demand increases.
• A further means of providing consumers with resources for settling their own disputes is to provide dispute resolution and negotiation education to students in schools and through community education programs. While some of this is happening through various programs, further work is required.
• Proposal 4 Place a legislative obligation on legal practitioners to provide information to their clients about ADR.
• ADRA supports any endeavours to ensure that all consumers and businesses are aware of the features and benefits of dispute resolution. Legal practitioners are in a unique position to provide information and recommendation as to appropriate forms of dispute resolution. Information by itself is often insufficient and it is noted that legal practitioners need training to understand and appreciate the dynamics of conflict management and dispute resolution.
• Proposal 5 Put a much greater emphasis on negotiation/mediation/conciliation skills in legal education.
• ADRA supports the compulsory study of dispute resolution by law students. To effect a culture change within the legal profession, all legal practitioners should be trained to develop an understanding and to become more aware of the advantages of dispute resolution. Please note that we are not suggesting that they all need to become accomplished mediators. ADRA agrees that further skills training should be provided, as outlined in the discussion paper.
• Dispute resolution should also be offered beyond the law faculty. There is room for particular encouragement of Dispute Resolution as an option in both undergraduate and post-graduate Teacher Education programs.
• Because of their broad usefulness, these skills should be integrated into the school curriculum.
• Proposal 6 Enact ‘guiding principles for the conduct of civil disputes’, which parties would be encouraged to honour. A court would take compliance with the principles into account should it ultimately be asked to adjudicate a civil dispute. Serious failure to comply with the principles could result in adverse cost orders.
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• We agree in principle with the introduction of guiding principles for the conduct of civil disputes. This would serve to highlight the features and benefits of dispute resolution to the legal profession, as well as actively encouraging the take-up of dispute resolution prior to engaging in arbitration in court.
• We believe that the ultimate goal of introducing guiding principles in the first instance should be to mandate for attendance at dispute resolution.
• Proposal 7 Encourage collaborative law practices in a greater range of civil law matters.
• Collaborative practice emphasises early dispute resolution in the hands of the parties while retaining the services of the legal profession to ensure rights are not over-ridden. ADRA supports collaborative law initiatives. There is much room for growth in collaborative practice amongst the legal profession. Collaborative practice should attract similar costs outcomes as other forms of dispute resolution.
• We note there are some concerns about briefing new legal counsel when a settlement is not reached. There are also concerns about legal practitioners engaging in a form of collaborative practice when they are not fully trained in that area.
• Research about the effectiveness of collaborative practice in NSW is warranted.
• Proposal 8 Require government agencies to be more accountable with respect to their adherence to the Model Litigant Policy and relevant Premier’s memoranda, by putting in place appropriate performance measures to monitor compliance and / or using appropriate auditing mechanisms.
• We agree with the proposal to require accountability. Accountability as suggested in the discussion paper should be a first step to ensuring Government policy is recognised in terms of policy and adhered to in practice. Analysis of performance measures will allow the NSW government to position itself as a leader in dispute resolution practices.
• We particularly note the importance of government agencies appreciating the reduced costs associated with dispute resolution.
• Proposal 9 Incorporate the main elements of pre-action protocols as ‘best practice standards’ in the ‘guiding principles for the conduct of civil disputes’ (see Proposal 6). If a dispute is subsequently litigated the court could take the extent of compliance into account, when determining costs (including indemnity costs) (see Proposal 15). Alternatively, practice directions could be issued mandating specific steps that must be taken before certain types of cases commence.
• The Industrial Relations Commission of NSW provides a model whereby the completion of an application and a response are the only steps required before conciliation. Matters are frequently settled at the first conciliation. This compares with other jurisdictions where full disclosure at mediation or conciliation extends the time and cost involved in preparing for the dispute resolution process.
• Protocols for different jurisdictions need to take into account the size of the claim and the proportionality of costs.
• ADRA believes that mediation/conciliation rooms should be available without cost for dispute resolution whenever the process is likely to result in reduced court costs. Use of rooms within a court complex gives credibility to the notion that dispute resolution is an integral part of the justice system in NSW.
• Proposal 10 Progress amendments to uniform commercial arbitration legislation, based on the UNCITRAL Model Law on International Commercial Arbitration, supplemented by any additional provisions as are necessary or appropriate for the domestic scheme.
• ADRA has noted the marked decrease in the number of matters referred to domestic arbitration in NSW. We note the advantages of amending the Commercial Arbitration Act based on the UNCITRAL Model Law on International Commercial Arbitration. We note the advantages of the current s 27 in enabling arbitrators to pursue hybrid practices if and when appropriate.
• We believe that the enactment of legislation that meets international standards is necessary to allow Sydney to become an international centre as set out in proposal 11.
•  Proposal 11 Establish a single Sydney International Arbitration Centre that has the physical space, organisational facilities, secretarial, computer and research support in the one location, to position Sydney better as a centre for international commercial arbitration.
• ADRA is keen to endorse this proposal as an opportunity to promote Australia’s dispute resolution professionals internationally. We note the advantages currently enjoyed by Singapore and Hong Kong within the region.
• We support the establishment of a Sydney International Arbitration Centre which would bring more international dispute resolution work to Sydney. We believe that the project can be expanded at a later stage to include a wider range of dispute resolution proposals.
• Proposal 12 Give high priority to the collection and analysis of data about the ways civil matters are finalised in the courts, and data about the cost effectiveness of case management strategies.
• We agree with proposal 12. In addition, the collection and analysis of data should not be limited to civil matters in the courts. The timing of settlement is also relevant because of the number of matters settled ‘on the court steps’ after long time delays and substantial costs are incurred. Participant satisfaction should also be measured.
• Proposal 13 Change the language and processes used by courts to resolve civil disputes - along the lines suggested by the British Columbian working group on civil justice reform - so that the primary focus is on preparation for ADR rather for trial.
• ADRA supports any initiative which puts the focus on dispute resolution as the preferred methodology. We agree that the focus on preparation for dispute resolution rather than preparation for trial requires substantial adjustment of practice by the legal community. Changes in some jurisdictions have proved that the legal community can adjust to changes regardless of the strongest of protests.
• Consistent with this view, ADRA believes that ‘dispute resolution’ is a preferred term, rather than ADR. ADRA dropped the word ’alternative’ from its title 20 years ago and reaffirmed its preference for the terms ‘dispute resolution’ and ‘dispute management’ earlier this year.
• Proposal 14 Give high priority to the collection and analysis of data about court-annexed and private mediations, including how quickly they are able to effect settlements, and whether they ultimately reduce the proportion of matters that proceed to trial.
• We agree in principle, but believe the emphasis in the first instance should be on establishing an appropriate system for the collection an analysis of data. How data is collected and the purpose for what it is used is significant. We note there are inherent difficulties in collecting data from private sector operators. We would be pleased to cooperate with any venture that seeks to do so.
• We also are concerned that success of mediation is not measured purely in terms of agreement, but includes such measures as party satisfaction, maintenance of relationships and enhanced ability of parties to communicate and manage conflict in the future.
•  Proposal 15 Provide that the court is to take into account parties’ attempts to engage in ADR when making orders as to costs.
• ADRA supports this proposal as a practical means of encouraging dispute resolution. This is already in place in the worker Compensation Commission.
• Proposal 16 Improve arbitration by penalising failure to disclose if a matter is subsequently litigated (there is some evidence that parties have been using it as a ‘dry run’, and keeping ‘smoking guns’ until the actual trial).
• We support this proposal in some instances. A potential difficulty arises from this issue, where substantial time and financial costs arise from the requirement for the whole case to be known prior to mediation or conciliation. Comparison between costs incurred and time taken between filing and mediation in the Workers Compensation Commission and other jurisdictions where this is not the case exemplifies our concern. However, encouragement to bargain in good faith is useful and the amount of preparation for dispute resolution needs to be proportionate to the size of the dispute.
• Proposal 17 Increase the small claims jurisdiction of the Local Court from $10,000 to $30,000 and make greater use of assessors.
• An increase in small claim jurisdiction is long overdue. The use of assessors is a proven strategy and will need to be increased to cope with any increasing number of claims resulting from the higher limit. The process should not be a mini-trail and assessors need to be appropriately trained.
• Proposal 18 Introduce the following strategies to encourage earlier settlement of disputes in the small claims division:
• Pre trial reviews being conducted by trained mediators (registrars, assessors and magistrates)
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• Require the party to attend the pre trial review either in person or by teleconference
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• Conduct the pre trial review in a registry office instead of the court room to facilitate a mediation session, where possible.
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• ADRA supports the three steps proposed. We believe that pre-trial reviews or conferences in a registry office or conference room in person or by teleconference are readily achievable in a short time frame. Those conducting reviews should have relevant knowledge as well as being accredited mediators in accordance with the national mediator accreditation system.
• It may be useful for parties to be required to attend an information session where information about dispute resolution is provided.
• Proposal 19 Move to a system where all mediators on the District and Supreme Court mediators’ panels are accredited under the National Mediator Accreditation System, and all court-annexed mediations (where a registrar or other officer of the court is the mediator) are carried out by a person accredited under the National Mediator Accreditation System.
• The proposal is supported but we believe it is too limited. National accreditation should be mandatory for mediators and conciliators in all tribunals. All court-referred mediation should be conducted by accredited mediators. These steps encourage best practice which will better showcase the features and benefits of dispute resolution to consumers and businesses.

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• 31 May 2009

• Justice Kevin Bell
• President
• Victorian Civil and Administrative Tribunal
• Level 1, 55 King Street
• Melbourne VIC 3000

• Dear Justice Bell

• Re: President’s Review of VCAT

• I refer to your letter dated 27^th March and wish to thank you for the opportunity to comment on your review of VCAT.

• Your review of VCAT is in terms of how VCAT might continue to deliver low cost, efficient and fast access to justice that is fair to all in Victorians. You seek ideas and suggestions to assist in shaping this review. I note in particular that the consultation paper raises issues regarding the role of alternative dispute resolution in the future of VCAT. In your speech to the Law Institute of Victoria on 4 September 2008 you cite the achievements of VCAT and raise some questions for review.

• It is a great achievement that many disputes have been resolved by adjudication or alternative dispute resolution. However, you ask and seek to review whether access to VCAT:

• is equal. An access available to all jurisdictional areas and to all parties equally.
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• is as quick, efficient and cheap as possible, and the method of resolution fair and appropriate
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• delivers justice. A justice that is generally seen to be fair, competent and principled, with reasonably consistent and predictable decision-making.
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• In the consultation paper of March 2009 you ask a series of questions regarding Alternative Dispute Resolution:

1. Should ADR be a compulsory step in every dispute at VCAT?
2. Is VCAT an appropriate physical forum for ADR, or is it seen as too formal?
3. Is ADR at VCAT becoming too legalistic? If so, how can ADR be made simpler and more accessible?
4. Should there be limits on legal representation in ADR?
5. What educative function can VCAT play in the promotion of ADR?
6. What additional steps can VCAT take to become a center of excellence for ADR?

• These are important issues to consider and it is commendable that you are doing this in such a consultative fashion. The position of ADRA in relation to the questions you have raised is briefly covered in the following:

• Question 1: We are of the opinion that dispute resolution should be a compulsory step in every dispute, at VCAT and elsewhere. It may be appropriate to require parties to re-engage in dispute resolution, assisted perhaps by a different mediator, where satisfactory resolution has not been reached.

• Questions 2 and 3: The existence of a purpose built mediation centre in King Street, Melbourne, is to be commended. Perhaps this location could be supplemented by other satellite locations elsewhere in Victoria. Depending on the nature of the mediation, it may be at times more appropriate to conduct the mediations more locally.

• Question 4: We understand that VCAT places limits on legal representation in ADR. This is an important step, as active legal representation may place a barrier to the parties genuinely resolving a dispute themselves. However, there are matters in which legal representation is appropriate and the question of proportionality is relevant.

• Question 5: This is a question that can be very resource dependant. Education is clearly an important element if dispute resolution is to be taken up fully by the legal profession and by the public. Without education there cannot be true equal access. ADRA supports including dispute resolution in legal studies as a compulsory requirement, in other faculties including education and social work and educating the community in public forums such as media and through public institutions such as schools.

• Question 6: There is a considerable need for the review such as you are conducting to be a built in aspect of dispute resolution functions and activities. The information generated is an important source for examination and publication to promote and refine ADR in Victoria and Australia generally.

• ADRA thanks VCAT for its commitment to ensuring that the dispute resolution industry is consulted with respect to the review you are undertaking. We are aware that the Victorian organisation, VADR, is also interested in responding to your call for submissions and we at ADRA understand that VADR would have more specific knowledge and experience of the Victorian justice system.

• Should there be any questions in relation to any of the comments outlined in this letter, I would be happy to discuss ADRA’s comments further.

• Yours sincerely

• Janice McLeay

• President

• __________________________________________________________

•   ADRA Submission – NADRAC Inquiry May 2009
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• Please note that the Australian Dispute Resolution Association opted not to use the term ‘alternative’ when discussing dispute resolution procedures some twenty years ago. It is ADRA’s practice to refer to ‘dispute determination’ (court adjudicated processes) and ‘dispute resolution’ (historically referred to alternative dispute resolution, or ADR.)

• 2 About ADR — Questions

• 2.1 To what extent is there a need for greater consistency in the use of ADR terms? How could this be achieved? What are the risks of greater consistency in the use of terms?
• All organisations should be encouraged to adopt a definitive source of terminology, be it the NADRAC Glossary of dispute resolution terms, or another source. This will assist consumers to understand the process they are committing to. ADRA notes that defining terms does not necessarily involve narrowing the application of methodologies.
• 2.2 How does inconsistent use of ADR terms affect consumers and referral to ADR processes by courts, lawyers and others?
• Inconsistent use of terms can be confusing to consumers and practitioners alike. Defining processes will assist in a clearer understanding of all forms of dispute resolution.
• 2.3 What are the advantages and disadvantages of adopting common process models for ADR processes, adopting standard definitions or adopting statutory definitions?
• ADRA notes the advantages of consumers and practitioners having a common understanding of dispute resolution processes, rather than adopting common processes. ADRA supports the consideration of definitions that are wide enough to facilitation the broad implementation of processes.
• 3 Promoting public awareness — Questions
•  3.1 To what extent is there a need to improve the understanding of ADR and its differing processes in the general community? How might this be achieved?
• ADRA notes the importance of providing the general community with information about what is involved in different dispute resolution processes.
• ADRA also notes that the development of hybrid or blended processes in which the role of the mediator changes has increased the need to improve general understanding of the different processes. A community awareness program involving the use of information brochures and/or information sessions in courts are examples of promotional opportunities that might be explored.
• ADRA particularly notes the advantages of multi-door court house, similar to the Neighbourhood Justice Centre in Victoria, as a vehicle of providing awareness of different dispute resolution processes.
• This might include an expansion of centres such as the Community Justice Centres to shopfronts similar to the Medicare shopfront to enable greater access to information on dispute resolution and its advantages. These shopfronts are in shopping centres which would promote a greater awareness of dispute resolution.
• 3.2 Which other groups or organisations might benefit from a greater awareness of ADR? How might this be achieved?
• Family doctors, Churches and schools often become aware of conflicts early, before matters get to the stage where other professional such as lawyers are called in. Other professions that would benefit from a greater awareness of dispute resolution processes include counsellors, teachers, human resource professionals, the medical profession more broadly and legal practitioners themselves.

• Brochures could be sent to each of these organisations and to professional organisation for distribution.

• 4 Provision of ADR Services — Questions
•  NOTE: Where appropriate, a reference to 'court' should be read as including 'tribunal' and a reference to 'judge' should be read as including 'tribunal member'
• Court services
• 4.1 What are the benefits and drawbacks of court based ADR?
• ADRA notes that courts may not be suitable venues for dispute resolution processes, particularly with respect to cultures whose experience with courts is particularly negative. ADRA prefers that dispute resolution processes are conducted in a building or space outside the court, whether in a dispute resolution centre or a multi-door courthouse or another alternative venue.
• ADRA notes that the provision of court based dispute resolution processes may shift the cost of these processes from the consumer to the state.
• 4.4 How effective are the existing ADR services available in courts and tribunals prior to a final hearing?
• ADRA notes that the Industrial Relations Commission of New South Wales recorded that the use of dispute resolution processes resulted in up to 95% of matters being resolved before adjudication.
• ADRA also notes that the New South Wales Workers’ Compensation Commission resolves up to 75% of matters prior to adjudication.
• 4.5 To what extent should judges or other court staff encourage disputants to use ADR (where not required by legislation)?
•  This should be done at every stage where appropriate, and should be encouraged.
• ADRA notes the advantages in time and cost savings should judges and court staff encourage disputants to undertake dispute resolution processes.
• 4.6 What role should courts have in facilitating or providing ADR?
• ADRA supports the courts bearing the costs of dispute resolution processes. ADRA also supports the provision of dispute resolution processes by courts, in circumstances where those processes are provided by practitioners with appropriate dispute resolution training. If mediation was provided, this should be provided by Nationally Accredited mediators.
• 4.7 To what extent might low cost, efficient court ADR services be a disincentive for disputants to use other ADR services before commencing proceedings? What could be done to overcome that?
• It could mean that parties will not, or will not be encouraged to, seriously turn their minds to dispute resolution until after commencing proceedings. By this time emotional and financial expense will have been incurred which might have been avoided. Lawyers should be required to inform clients of all options and conduct extensive risk/cost analyses before preparing to commence proceedings.
• ADRA notes that some disputants may rely on free/cheap court dispute resolution services rather than exploring dispute resolution at their own cost.
• The Court may be in a position to introduce a fee system where disputants lodging matters with the Courts receive a discount if they have attempted to resolve the dispute before commencing proceedings. ADRA notes that this may involve some difficulties with respect to parties engaging in ‘good faith’ dispute resolution measures, and gauging whether the parties had engaged in the process in ‘good faith’.
• 4.8 What are the advantages and disadvantages of requiring court provided ADR services to meet the same standards as private and community based services?
• Any dispute resolution processes provided by the courts should be substantially similar to those processes offered privately and by community based services, where costs permit. ADRA notes the importance of providing a cost effective process in a Consumer Trade and Tenancy Tribunal with respect to a claim for $60.00, especially when compared with the provision of an appropriate process for a Workers Compensation Commission claim in excess of $1,000,000.00.
• ADRA notes the importance of any practitioner providing dispute resolution processes being properly accredited. In the context of mediation, mediators should be Nationally Accredited.
• Judicial dispute resolution
• 4.9 What are the advantages and disadvantages of judges conducting ADR processes? In particular, what are the advantages and disadvantage of judges conducting mediation (as described under the National Mediator Accreditation System)? Are there particular cases where direct participation by judges in ADR is more appropriate?
• ADRA recognises that the skill sets of the judiciary and the skill sets of other dispute resolution practitioners are not mutually exclusive. Some members of the judiciary may be trained and have the skills to conduct other dispute resolution processes. ADRA notes a potential disadvantage, being that dispute resolution may be perceived as part of the judicial process. ADRA also notes the procedural fairness issues involving judges mediating matters which they later go on to adjudicate.
• ADRA again notes the importance of mediation services being delivered by Nationally Accredited mediators.
• 4.10 To what extent is it an advantage of judicial involvement that it improves the chances of resolution? Why might this be the case? To what extent might this have negative consequences?
• The Judge is an authority figure who in addition is expected to have expertise in the substance of the dispute. This gives a judge more status than a non-judicial mediator. The negative consequences could be a perception that mediation by a judge is the ‘best mediation’ available. ADRA notes the inherent difficulties of a judge proceeding to adjudication if the judge has private meetings with the parties during any earlier form of dispute resolution.
• Parties may be more receptive to settlement when dispute resolution is delivered by a judge. Lawyers representing parties who re-appear in front of the same judge may be more likely to be predisposed to settlement due to the ongoing nature of the relationship that these lawyers are seeking to maintain with the judge.
• 4.12 To what extent might the confidentiality of ADR be undermined if a judge conducts it? What reporting requirements might apply?
• ADRA notes that a judge can maintain confidentiality as required. ADRA also notes the perceived difficulty of a judge who has been provided with confidential material during dispute resolution moving on to an adjudication role.
• 4.13 To what extent are judges’ skills and experience suited to facilitative processes like mediation, advisory processes like conciliation and blended processes like con-arb? How might judges’ skills differ?
• ADRA notes the differing skill sets required of differing dispute resolution processes and adjudication processes. ADRA notes that these skill sets are not necessarily mutually exclusive. ADRA further notes the importance of judicial training and also notes the importance of any practitioner undertaking mediation being Nationally Accredited.
• Court officer provided ADR
• 4.14 What are the advantages and disadvantages of having court staff such as registrars provide ADR services? What role might be most appropriate?
• ADRA notes the importance of dispute resolution being provided by accredited personnel with the appropriate skill sets.
• 4.15 What are the advantages and disadvantages of courts engaging specialist ADR practitioners to provide ADR? What are the advantages and disadvantages of courts engaging ADR practitioners with particular expertise, e.g. accounting, engineering, psychology, etc?

• ADRA notes the advantages that dispute resolution practitioners with particular expertise bring to dispute resolution processes with respect to the impact that this has regarding the confidence of the parties in the process. Parties appear to have greater confidence in dispute resolution practitioners who have a demonstrated expertise in the subject matter in dispute.
• Private, community and government based ADR
• 4.16 What are the advantages and disadvantages of private ADR services and those provided by industry groups?
• ADRA has observed that dispute resolution services provided by industry groups have a level of expertise and technical understanding that can be of great benefit to the parties in dispute. These processes tend to involve published procedures which also assist the parties in the dispute.
• When these processes are free to consumers this is an arguable advantage of industry group provided dispute resolution.
• ADRA has observed that dispute resolution services provided by private entities can be quick, personalised and very responsive to the individual matter.
• 4.18 What are the benefits and drawbacks of existing government ADR services?
• ADRA supports more research in this area.
• 4.19 What are the advantages and disadvantages of courts referring matters to external ADR practitioners?
• Referral to an external mediator may carry and advantage when the parties believe the mediator has relevant expertise beyond that which is available internally. Cost may be an advantage or disadvantage, depending on the circumstances. One situation occurs when the parties can access free services within the court and not outside; another situation occurs where mediation can settle the dispute in a timely way compared with lengthy or protracted legal proceedings.
• 4.20 What are the advantages and disadvantages of providing specialised assessment, referral and dispute resolution centres outside the courts? What would the functions of such bodies be? How might they be resourced?
• ADRA notes the advantage of dispute resolution centres which provide consumers with specialised assessment, referral and dispute resolution as follows:
• Clear explanation of the processes available;
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• Clear outline of the costs involved; and
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• Easy access to expert practitioners.
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• ADRA notes the advantages in these bodies being state funded to ensure that the service delivery is unbiased and of a high quality.
• Please see the response outlined at 4.1
• 4.21 What is the appropriate role of government funding in relation to private and community ADR services?
• Government funded dispute resolution services should feature trained practitioners and assist practitioners by providing centralised communication, training, supervision and accreditation support. Government funded dispute resolution should be available in areas of financial need and physical disadvantage and for indigenous communities.
• 4.22 To what extent is there a need for more, or more highly specialised, private, community based or government ADR services?
• ADRA notes the importance of providing culturally appropriate dispute resolution services, and that government ought to fund these services where appropriate.
• 4.23 To what extent is there a need to improve the quality of private, community based or government ADR services? How can quality be enhanced?
• ADRA notes the importance of ensuring the government funding meets the dispute resolution needs of all members of the community and that the quality of the dispute resolution services provided can be enhanced by providing funding for accreditation and training purposes.
• 4.24 Are there any issues relating to the fees charged for ADR services which need to be addressed?
• The cost of dispute resolution services may be preventing some consumers from accessing dispute resolution services.

• 5 Referral and assessment — Questions
• NOTE: Where appropriate, a reference to 'court' should be read as including 'tribunal' and a reference to 'judge' should be read as including 'tribunal member'.
• See also questions relating to referral and assessment at Chapter 4, Provision of ADR Services (re specialist referral centres) and Chapter 6, ADR and Litigation (re mandatory referral).
• 5.1 To what extent is there a need to enhance the understanding of ADR and negotiation in legal or other professions? How might the information and referral functions of professionals be enhanced? What are the advantages and disadvantages of introducing compulsory ongoing training about ADR for lawyers?
• Lawyers should be trained to recognise styles of negotiation, to acquire skills in ethical negotiation practices. Professionals who deal with human conflict should be made aware of dispute resolution principles and resources.
• ADRA supports the ongoing training of lawyers in dispute resolution processes. This will encourage lawyers to provide clients with contemporary models of dispute resolution and will ensure that lawyers have the opportunity to provide clients with new and innovative dispute resolution strategies.
• 5.2 To what extent is there a need to enhance the understanding of ADR amongst court staff and judges? How might their information and referral functions be enhanced?
• ADRA notes the importance of providing specialised in-house training to court staff and judges to ensure that the dispute resolution processes being recommended/provided by the staff and judges are appropriate.
• ADRA also notes that this will provide court staff and judges with an opportunity to canvass all options when assisting parties to resolve their disputes.
• 5.3 To what extent is there a need to increase the emphasis on ADR in university courses? In which faculties? What are the advantages and disadvantages of making ADR a compulsory subject for certain students?

• Dispute resolution education should not be confined to law courses. It should be taught in Commerce, Social Work, Medicine, Education and similar disciplines. It should be compulsory for Law Students to make them rounded dispute resolvers so they no longer focus mainly on litigation. Negotiation theory should be taught. It should be made clear that separate skills training will be required if they want to practise dispute resolution.

• 6 Barriers and incentives — Questions
• NOTE: Where appropriate, a reference to 'court' should be read as including 'tribunal' and a reference to 'judge' should be read as including 'tribunal member'.
• 6.1 What are the barriers to the use of ADR before civil proceedings are commenced? To what extent, do they apply generally to all forms of ADR? To what extent do they apply to all types of disputes? Why? How can they be overcome?
• ADRA notes that this appears to be consequence of the mindset of the legal professionals involved who do not appear to consider dispute resolution before commencing civil proceedings. This appears to be a common experience with respect to all dispute resolution processes. It may be a consequence of a lack of awareness or inducement to consider dispute resolution processes prior to commencing civil proceedings.
• 6.2 What are the barriers to use of ADR after civil proceedings have been commenced? To what extent do they apply generally to all forms of ADR? To what extent do they apply to all types of disputes? Why? How can they be overcome?
• ADRA notes that the reasons outlined at 6.1 above would also apply here. Again, inducements to consider dispute resolution processes may be appropriate.
• 6.3 To what extent and in what ways is the culture of the legal profession a barrier to greater use of ADR? Why? What could be done to remove this barrier?
• The culture of the legal profession is changing in relation to dispute resolution and will continue to change, particularly as dispute resolution is taught in Law Schools. A useful approach to removing this barrier includes education of legal practitioners and providing inducements during the process to encourage the uptake of dispute resolution.
• 6.4 To what extent and in what ways is the adversarial nature of the civil justice system a barrier to greater use of ADR? Why? What could be done to remove this barrier?
• The adversarial system sets up a contest to see who will win, whereas dispute resolution is a co-operative approach to a common problem. The adversarial system and its terminology (applicant-respondent, plaintiff-defendant) creates opponents. Dispute resolution tries to create partners. There needs to be encouragement, if possible, to work together. Perhaps lawyers could be educated to undertake this task.
• 6.6 To what extent is the cost of ADR services, or inability to recover costs for ADR, a barrier to early use of ADR? What could be done to remove any barrier?
• ADRA proposes that legislation be implemented so that the costs accrued during dispute resolution are included in costs in the cause.
• 6.7 How might the use of the draft model mediation clause at Attachment D assist in overcoming barriers to the use of ADR? How might the use of such a clause be encouraged? Would it be helpful if such a clause were implied into all contracts?
•  ADRA supports the promotion of model mediation clauses in order to promote dispute resolution generally. Clauses can be encouraged through promotion to lawyers, particularly in-house lawyers, business managers and small to medium sized business enterprises.
• Should such a clause be implied into all contracts, this would arguably improve the uptake of dispute resolution services but may not have the same promotional benefits.
• 6.8 What strategies could be pursued by litigants, lawyers, tribunals, courts or government that would provide incentives to use ADR before commencing litigation?
• ADRA suggests the implementation of community education, resourcing community centres with dispute resolution information and the consideration of a multi-door courtroom as strategies that government could pursue that might provide incentives to parties to consider dispute resolution.
• 6.9 What strategies could be pursued by litigants, lawyers, tribunals, courts or government that would provide incentives to use ADR during litigation?

• ADRA notes that discounts on Court fees and cost implications may provide an incentive to use dispute resolution before commencing litigation.

• 6.10 What are the advantages and disadvantages of creating costs consequences for parties who do not attempt ADR? What form might these take? (See also discussion of mandatory ADR below).
• ADRA notes that this would provide parties with an incentive to engage in dispute resolution processes both prior to litigation and during litigation. This has the arguable benefit of reducing the pressures on the resources of the Court. The Court ought to have discretion to waive costs consequences in circumstances where dispute resolution is not appropriate or suitable.
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• 6.11 What are the advantages and disadvantages of requiring the courts or the legal profession to inform people and organisations in dispute about the ADR services that are available?

• ADRA notes that providing people and organisations with information about the availability of dispute resolution services is an important part of promoting dispute resolution.

• 6.12 Would it be helpful to include any of these measures in legislation, court rules or other subsidiary legislation?

• ADRA supports including such measures in legislation, court rules or subsidiary legislation.
• 6.13 What are the advantages and disadvantages of:

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   1.  
      1.  
         1. requiring disputants to consider ADR

• ADRA notes that this promotes dispute resolution and gives parties an opportunity to be introduced to dispute resolution concepts and processes.

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   1.  
      1.  
         1. requiring disputants to participate in an assessment of the dispute for suitability for ADR

• ADRA notes that this would have the advantage of demonstrating an understanding that not all matters may be suitable for dispute resolution

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   1. introducing statutory provisions requiring litigants to attend ADR before they can file civil proceedings or stating that the default or usual position should be that courts and tribunals should refer matters to ADR, unless the court is persuaded that this is not appropriate

• ADRA notes the promotional advantages of including dispute resolution services in mainstream dispute determination procedures. ADRA supports the inclusion of a proviso relating to the court being persuaded of the inappropriateness of dispute resolution in certain circumstances.

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   1. making attendance at ADR, or particular types of ADR processes, mandatory in federal civil proceedings

• ADRA notes the advantages of dispute resolution services, and notes that mandating dispute resolution may have the advantage of providing parties who would not have otherwise pursued dispute resolution with an opportunity of developing a settlement without the involvement of the Court
• 6.15 What are the advantages and disadvantages of requiring disputants to participate in ADR in good faith/make a genuine attempt to resolve the dispute? If such a requirement was introduced, what should be done to protect the confidentiality and integrity of ADR processes?
• ADRA notes that the attendance at dispute resolution without good faith can be a waste of resources.
• The professional decision of the dispute resolution practitioner should be all that is required in determining whether parties attending dispute resolution in good faith. To examine the reasons behind the decision may destroy confidentiality. The Family Law Model is a good example of how this may operate.
• 6.16 At what stage of the dispute should any mandatory ADR requirement apply?
• Dispute resolution should be encouraged at every appropriate stage of the dispute resolution/determination process. ADRA notes the importance of promoting a proportional approach to dispute resolution as outlined at 4.8 above.
• 6.17 What exceptions to a mandatory ADR requirement would be appropriate?
• A party’s physical or mental incapacity or an inability to pay may be considerations for exceptions to mandatory dispute resolution.
• The exception might be when the Court deems dispute resolution to be inappropriate in the circumstances.
• 6.18 What are the advantages and disadvantages of mandating different types of ADR or having different mandatory requirements for different types of dispute? How should types of dispute be distinguished?
• ADRA notes the advantage of involving a trained Court Official undertaking the task of discussing with the parties the most appropriate form of dispute resolution in the circumstances.
• 6.19 What are the characteristics of disputes for which ADR, or some forms of ADR, would not be appropriate?
• Some examples of disputes which may not be appropriate for dispute resolution include: extreme urgency or imminent danger, a party is dying, a structure is about to collapse.
• 6.20 To what extent would it be beneficial to require ADR practitioners to undertake an intake and assessment process to assess the participants’ needs, exclude inappropriate cases and refer elsewhere where appropriate?
• ADRA notes the advantages of a detailed intake and assessment process prior to the commencement of any dispute resolution process. ADRA supports the suggestion that some matters ought to be excluded from some types of dispute resolution and ought to be referred elsewhere if more appropriate.
• 6.21 If mandatory requirements are introduced, who should provide information about these and what obligations should apply? See for example requirements to provide information under the Family Law Act.
• ADRA supports a multi focussed public information campaign should mandatory requirements be introduced. ADRA would be particularly supportive of a media campaign outlining the different dispute resolution processes. ADRA also supports the installation of dispute resolution shopfronts.
• Use of ADR in government disputes —
•  Questions
• 7.1 In what type of matter do/should Commonwealth agencies utilise ADR?
• ADRA notes the advantage of utilising dispute resolution in all matters unless there is a clearly expressed reason as to the inappropriateness of dispute resolution in the circumstances.
• 7.2 What are the characteristics of disputes where it would be inappropriate for agencies to use ADR?
• Complaints of serious professional misconduct may be inappropriate for dispute resolution.
• 7.3 How can agencies improve their use of ADR processes?
• ADRA supports the offering of dispute resolution training to managers within government agencies.
• 7.5 To what extent would targeted guidance material or training for Commonwealth officers involved in ADR processes assist in the take-up of ADR, as well as in the quality of participation? What type of guidance material or training would be useful?
• ADRA notes that is has been observed that organisations which train their staff in dispute resolution services note an increased take-up of dispute resolution.
• 7.7 How can Government agencies find mediators? To what extent is assistance in this process required and how might this assistance be provided?
• ADRA notes that a number of organisations provide case management facilities which assist Government agencies in locating an appropriate mediator. ADRA supports the greater promotion of these services.
• 8 Use of ADR techniques — Questions
• NOTE: Where appropriate, a reference to 'court' should be read as including 'tribunal' and a reference to 'judge' should be read as including 'tribunal member'.
• 8.1 How might a specialist role similar to that of family consultants be useful in other federal courts and tribunals/areas of civil jurisdiction?
• ADRA supports this initiative where appropriate.
• 9 Data, Evaluation and Research — Questions
• 9.1 To what extent is there a need to improve the quality of available national data on ADR? What steps should be taken to identify the data required and improve data collection and research?
• ADRA would be pleased to assist in the improvement of data collection relating to dispute resolution practices.
• ADRA would like to encourage all users and providers of dispute resolution services to develop strategies to assist in the collection of this data.
• 9.2 To what extent is there a need to improve the quality of evaluations of ADR services? How can ADR services be evaluated, by whom and against what criteria?
• ADRA notes that improved collection of data will assist in evaluating the current delivery of dispute resolution services and will help to improve the future delivery of dispute resolution services.
• 9.3 What are the advantages and disadvantages of requiring service providers to commission independent evaluations of their services, and of requiring them to publish those evaluations?
• ADRA notes the inherent difficulty in collecting this data due to the confidential nature of many dispute resolution processes.
• 9.4 What might be done to support ADR research and researchers?
• ADRA supports the granting of scholarships for dispute resolution research, and notes the role of both industry and government in the granting of scholarships.