Member Article

Alternative dispute resolution benefits the public no matter what the outcome

Attorney-General Robert McClelland continues to pus alternative dispute resolution after launching the report A Strategic Framework for Access to Justice in the Federal Civil Justice System late last year. One of its main recommendations is to encourage Commonwealth agencies to use ADR. Whether or not the sweeping recommendations are implemented, they will no doubt increase the use of ADR in Commonwealth disputes.

 

Senior public servants are no strangers to disputes. Many, however, might not have engaged in ADR processes. Understanding how resolution processes work, and which are most appropriate to the circumstance at hand, can often mean the difference between an expensive and protracted dispute and a quick efficient resolution.

 

Using ADR to resolve disputes, and particularly the use of mediation, has become more prevalent. But without a good understanding of the range of ADR processes, it is difficult for public servants to know with confidence which tools available to them are the most appropriate.

 

Mediation is nothing more than a consensual negotiation with the help of an independent third party. It is very effective in distilling the issues in disputes between parties. Even the most complex matters – which may contain, for example, complex IT issues with issues that have developed over many years – must be distilled in a way that a mediator can understand and deal with, usually in a single day. The mere fact that each party tries to distil the issues in dispute, often within five or so pages, forces them to put aside more trivial arguments and focus on those issues most important to their case. If the parties haven’t done so already, the crystallization of the critical issues, which often stem from the joint focus of lawyers and their clients, ensures that such issues are quantified, so that the parties’ positions are well understood before the mediation.

 

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