Risks associated with ADR service provision
2.6 Implications for standards
2.85 Despite their methodological shortcomings, research studies appear to support some of the claims of ADR, namely that it is responsive, quick, fair and informal, and that it is cheaper than litigation. Most parties appear to value ADR, and seem capable of making distinctions between substantive satisfaction and procedural satisfaction in that, while they may be unhappy with the outcome of the dispute, they appreciate the fairness of the procedure and the competence of practitioners.
2.86 Research indicates that ADR practitioners need to be competent to conduct the ADR process and that the knowledge and skills required vary according to the type of ADR practice and the context in which it is delivered (see Section 5.3). However, NADRAC has found no evidence in Australia or overseas 46 connecting a practitioner’s professional discipline or possession of academic qualifications with the quality of service provided.
2.87 NADRAC’s consideration of the research and of the potential risks associated with ADR indicates that satisfaction does not relate solely to practitioner and service standards and that consumer expectations, referral practices, and the suitability of the process for particular disputes or parties are also critical factors. Service standards may need to address the following in particular:
• The role of the third party should be clearly explained and acceptable to the parties and consistently followed during the process, particularly in relation to impartiality, confidentiality and responsibility for giving legal or other expert advice, suggesting solutions or determining the outcome.
• Service providers should ensure the accessibility of the service and the process to parties with diverse needs, taking into account the issue of repeat users, where relevant.
• ADR practitioners need to control the process in an effective way so that parties are encouraged to achieve settlement or resolution of their dispute, but are not subjected to abuse or coerced into agreement.
• The suitability of any ADR process in a particular case needs to be carefully assessed and the process terminated if it becomes clear it is doing damage, or wasting time and resources.
• The confidentiality of the ADR process needs to be limited where agreements have been obtained under duress.
• Service providers need to provide an accessible and effective process for handling complaints about ADR.
2.88 The diversity of ADR suggests that service providers need to develop their own standards which take into account the context of service provision.
Section 5.1 of this report provides guidance on the development of such standards.
2.89 Standards developed by ADR service providers need to ensure that adequate protection is provided for consumers in key areas. In particular, ADR service providers need to consider how they will enable informed and effective participation, determine the appropriateness of the dispute for the ADR process, ensure accessibility and fairness in procedure, terminate and
conclude the ADR process, maintain confidentiality, establish the appropriate level of practitioner competence and ensure the quality of the ADR process. These elements may be included in a code of practice (see Section 5.2).
2.90 Some of the risks associated with ADR may also be addressed by improving complaint handling about ADR services, effective self-regulation,
clarification of parties’ and practitioners’ legal rights and obligations within ADR processes, consideration of responsibilities associated with mandatory ADR and greater consistency in accreditation and selection processes.
Recommendations with respect to these issues are made in Chapter 4 of this report.
1 see for example Pavalko R. (ed.) Sociological Perspectives on Occupations, Illinois, FE Peacock; Perkin H.
(1996) The Third Revolution; Professional Elites in the Modern World, London, Routledge, Burrage M. &
Torstendahl R. (eds) Professions in Theory and History, London, Sage.
2 Press S. (2000) ‘International Trends in Dispute Resolution – a US perspective’ – paper given at 5th Annual Mediation Conference, Brisbane, May 2000.
3 Greenwood E. (1972) ‘Attributes of a profession’, in Pavalko R. (ed.), op.cit., p. 16.
4 Boulle L. & Mack K. (1997) ‘Dispute Resolution’ in Laws of Australia, Sydney, Law Book Company 13.1 [22].
5 ibid, 13.1 [24].
6 Australian Law Reform Commission (June 1998) Issues Paper 25: Review of the adversarial system of litigation. ADR – its role in federal dispute resolution, para. 3.57.
7 A pilot program of early neutral evaluation was conducted in the Perth Registry in 1992–3 but relatively few cases were referred to it. See Boulle L. & Mack K., op. cit., 13.1 [23].
8 Australian Law Reform Commission, op. cit., paras 3.57 & 3.18.
9 Boulle L. & Mack K., op. cit., 13.1 [25].
10 Rose A. (1999) ‘Federal government in civil litigation and dispute resolution’, Unpublished paper presented at the Conference The Management of Disputes Involving the Commonwealth: Is Litigation Always the Answer? 22 April 1999.
11 Australian Law Reform Commission. op. cit., paras 3.57 & 4.2.
12 Reith MP, The Hon. P. (May 1999) Implementation Discussion Paper The Continuing Reform of Workplace Relations: Implementation of More Jobs, Better Pay, pp 19–20.
13 Boulle L. & Mack K., op. cit., Dispute Resolution 13.1 [28].
14 Heap J. (1999) ‘Courts and Tribunals’, in Duncombe S & Heap J H Australasian Dispute Resolution, Sydney, Law Book Company, [4.340 – 4.1630]
15 Williams A.M. QC MP, The Hon D. (April 1999) Legal Aid Forum — Towards 2010, Keynote Address.
16 University of South Australia (1996) Australian Dispute Resolution Directory.
17 Australian Law Reform Commission (2000) Managing Justice.
18 Love A., Moloney L. & Fisher T. (1995) Federally Funded Family Mediation in Melbourne: Outcomes, Costs and Client Satisfaction, Canberra, Attorney-General’s Department.
Bordow S. & Gibson D. (1994) Evaluation of the Family Court Mediation Service, Melbourne, Family Court of Australia.
Dewdney M., Sordo B. & Chinkin C (1994) Contemporary Developments in Mediation within the Legal System and Evaluation of the 1992–3 Settlement Week Program, Sydney, Law Society of New South Wales Moloney L., Fisher T., Love A. & Ferguson S. (1996) Federally Funded Family Mediation in Sydney:
Outcomes, Costs and Client Satisfaction, Canberra, Commonwealth Attorney-General’s Department.
Keys Young (1996) Research/Evaluation of Family Mediation Practice and the Issue of Violence Final Report, Canberra, Commonwealth Attorney-General’s Department.
Tow D. & Stubbs M. (1997) ‘The Effectiveness of Alternative Dispute Resolution Methods in Planning Disputes’, Australian Dispute Resolution Journal, February , pp 267–281.
Lambeck F. (1997) ‘Rental Bond Disputes: A Comparison of Different Dispute Resolution Mechanisms for Rental Bond Disputes in the Australian Capital Territory’, Australian Dispute Resolution Journal, February pp 27–41.
Fisher J. & Blondel M. (1993) Couples Mediation: A Forum and A Framework, New South Wales Marriage Guidance.
Schwartzkoff J. & Morgan J. (1982) Community Justice Centres — A Report on the New South Wales Pilot Project 1979–81.
Prior A. (1994) ‘What Do Parties Think? A Follow-Up Study of the Marriage Guidance South Australia Family Mediation Project’, Australian Dispute Resolution Journal, 99.
Delaney M. & Wright T. (1997) Plaintiffs’ Satisfaction with Dispute Resolution Processes, Sydney, Justice Research Centre.
19 Chinkin C. & Dewdney M. (1992) ‘Settlement Week in New South Wales: An Evaluation’, Australian Dispute Resolution Journal, May, p. 114.
20 Ingleby R. (1991) In the Ball Park: Alternative Dispute Resolution and the Courts, Australian Institute of Judicial Administration Incorporated, p. 7.
21 Caspi S. (1994) ‘Mediation in the Supreme Court: Problems with the Spring Offensive Report’, Australian Dispute Resolution Journal, November, p. 254.
22 Ingleby R., op. cit., p. 6.
23 Love A., Moloney L. & Fisher T., op. cit.; Moloney L., Fisher T., Love A. & Ferguson S., op. cit.; Fisher J. & Blondel M.. op. cit.; Prior A. op. cit..
24 Gibson J., Harrison M. & Brown C. (1996) Client Attitudes to the Counselling Service of the Family Court of Australia, Family Court Research Report no. 15.
25 Phelan A. (1999) Strategic Use of Client Feedback by Courts: The Experience of the Family Court of Australia, Family Court of Australia.
26 Report prepared by Strategic Partners (1999) Child Inclusive Practice, Canberra, Family and Community Services.
27 Keys Young (1996) Research/Evaluation of Family Mediation Practice and the Issue of Violence Final Report, Canberra, Commonwealth Attorney-General’s Department.
28 Rush Social Research Agency and John Walker Consulting Services (1999) Legal Assistance Needs Project:
Phase Two SUMMARY REPORT, prepared for Family Law and Legal Assistance Division, Canberra, Attorney-General’s Department.
29 McNair (September 1995) Family Mediation National Poll, Canberra, Commonwealth of Australia.
30 Moloney L., Fisher T., Love A. & Ferguson S., op. cit., p. 105.
31 Fisher L. & Blondel M., op. cit., p. 26.
32 Moloney L., Fisher T. Love A. & Ferguson S., op. cit., p. 105.
33 Fisher L. & Blondel M., op. cit., p. 26.
34 Bordow S. & Gibson J., op. cit., p. 108.
35 Keys Young, op. cit., p. 80
36 ibid., p. 99.
37 Rush Social Research Agency and John Walker Consulting Services, op. cit. p. 31.
38 Commonwealth Department of the Treasury (1999) Consumer Redress Study, Canberra, Commonwealth of Australia.
39 Western Australian Equal Opportunity Commission (1994) Investigation and Conciliation: Report of the Steering Committee into Processes Under the Western Australian Equal Opportunity Act 1984.
40 Hunter R. & Leonard A. (1995) The Outcomes of Conciliation in Sex Discrimination Cases, Melbourne, Centre for Employment and Labour Relations Law, Working Paper no. 8.
41 ibid.
42 ibid.
43 Western Australian Equal Opportunity Commission, op. cit.
44 ibid.
45 ibid.
46 see for example Morris C. & Pirie A. (eds) (1994) Qualifications for Dispute Resolution - Perspectives on the Debate, Victoria BC, UVic Institute for Dispute Resolution; and SPIDR (Society for Professionals in Dispute Resolution (1995) Ensuring Competence and Quality in Dispute Resolution Practice.