Since 2011, Civil Dispute Resolution Act 2011 has required parties to take genuine steps to resolve a dispute before commencing certain civil proceedings in the Federal Court and Federal Circuit Court. This Federal legislation was introduced to promote a move away from an adversarial approach to litigation and encourage early dispute resolution.

Determining that more legal problems could be resolved through ADR

The Australian government also commissioned an inquiry into access to justice by the Productivity Commission in 2014. The report from this inquiry concluded that more legal problems could be resolved through ADR processes, and that greater use of such processes would lower costs and lead to faster resolutions. Proponents of the benefits of ADR highlighted the key strengths of these processes as: flexibility, cost effectiveness, diversity, inclusiveness, accessibility and creativity.

ADR in Australia includes a wide range of processes

Alternative Dispute Resolution in Australia includes a wide range of processes, including: mediation, conciliation, restorative justice, and arbitration. ADR programs include: court connected mediation programs, compulsory conferences in tribunals and commissions, and community mediation programs. Conciliation is one form of ADR, which has a long history in Australia and has similar features to mediation. It is used in a wide range of jurisdictions, including: industrial relations and workplace disputes, workers compensation, complaints about human rights, equal opportunity and discrimination, family law and complaints about health, disability, aged care and community services. Of note in Australia is the way in which ADR is practiced in indigenous communities and applied to Native Title disputes.

While ADR is well developed in Australia and is used in a wide range of matters and jurisdictions, marginalized and vulnerable groups, such as people with disabilities and people with mental health issues, can still experience barriers and challenges in accessing and participating in these processes. To this end, a number of specialist bodies are working to address these issues and create accessible and supportive ADR processes. These include: the Mental Health Complaints Commissioner and the Disability Services Commissioner in Victoria, and anti-discrimination and human rights commissions, which operate throughout Australia.

By Lynne Coulson Barr, Senior Fellow-Australia, Weinstein International Foundation.