LA4034: Away from the Courts - Advantages and Disadvantages of ADR.

This essay was the major assessment for LA4034 at JCU Cairns in 2016. LA4034 was 'Alternative Dispute Resolution' or as known in the trade 'ADR'. An excellent course with immediate benefits outside of my study of law. ADR encourages participants in conflict, or a dispute, to find common ground, focus on shared interests, avoid taking immovable positions, and looking for objective criteria upon which to help assess or resolve conflict. People in dispute will have more ownership of a solution, and will more likely abide by the solution, when they have been involved in creating the solution. Away from the adversarial nature of the courts, ADR is an important tool for dispute resolution, and in fact a compulsory part of the process in some jurisdictions like the Family Courts in Qld, or some Magistrates Courts. Solving the problem before getting to court appears a win-win situation. I sincerely encourage anyone in conflict to look very closely at negotiating or mediating a solution before getting into an adversarial battle.

This essay assessment grade: Distinction

Paul's LA4034 course grade: Distinction

1. INTRODUCTION

Alternative Dispute Resolution (ADR) allows parties to a dispute greater control in resolving conflict compared to proceeding with litigation, although there are advantages and disadvantages of using ADR processes. ADR is often regarded as being advantageous not least because it is quicker and cheaper than litigation, providing parties to a dispute greater control over transaction and financial costs involved in the dispute resolution process. Importantly ADR provides for and delivers upon community expectations about access to justice, and acts as an accessible gateway to substantive justice. Compliance remains high for wise agreements that are negotiated via ADR processes, rising from entry level negotiation and mediation up to pre-litigation arbitration, due to the involvement of parties in creating their own agreements very often in their own words. Additionally advantageous is the confidentiality aspect of ADR, providing parties an ability to stay away from the courts, and resolve their grievances behind closed doors. However, while agreements secured within ADR have many advantages, parties progressing up the ADR continuum can experience disadvantages as they lose control over the process, face increasing costs, and decreasing confidentiality, flexibility and prospect of maintaining a relationship with the other party. Equally valid and disadvantageous is that ADR processes can reinforce traditional power imbalances and perceptions of second hand justice (not delivering real justice) particularly from the perspective of disadvantaged groups in society, and from some feminist viewpoints. Whilst assessing all positives and negatives of ADR are beyond the scope of this essay, ADR does provide a range of dispute resolution processes which keep disputes out of the courts, provide disputants more control over conflict resolution, and are likely to contribute to time and cost savings for all involved.

1. ADVANTAGES AND DISADVANTAGES OF ADR

Going to court can cost tens of thousands of dollars and incur high personal transaction costs to achieve results similar those more cost effectively accessed through ADR.[1] The ALRC noted in 2000 that there were problems with “the cost, timeliness, efficiency and accessibility of the federal justice system,”[2] and this statement in itself recommends early stage ADR processes for the cost savings accessible when disputants stay away from court. Negotiation (ADR in its simplest form) could for example be achieved over a beer or a meal, where parties work out their differences without third party involvement in a relaxed and informal environment. Neighbourhood disputes, simple contractual or uncomplicated family matters are examples of situations that could be settled for little or no cost via negotiation. Failing a successful negotiation, mediation is a cost effective, impartial and independent process for dispute resolution facilitated by a third party (mediator) who does not determine the outcome, but does assist parties to reach their own agreement. Mediation would be a good example of what the Sackville Committee referred to when promoting that “all Australians, regardless of means, should have access to high quality legal services or effective dispute resolution mechanisms.”[3] Mediation decreases the transaction costs incurred by disputants and decreases the financial cost for all parties involved (including the State) as evidenced by the Family Court insisting upon family dispute resolution (FDR) processes being completed before proceeding to court.[4] Disputes that are resolved before heading to litigation assist the State to avoid financial costs incurred with the physical administration of justice (like salaries and running costs associated with running a court room). Staying away from the courts not only reduces cost, but help disputants achieve substantive justice and wise agreements.

Under the rule of law justice should not only be done, but be seen to be done. ADR processes (particularly negotiation and mediation) allow parties to a dispute directorial control over the process of crafting a resolution. This process, then, is more likely to deliver substantive justice (real justice as viewed by the parties) as opposed to court delivered procedural justice (administration of justice equally without fear or favour) in litigation. ADR provides parties an ability to tweak, refine or tailor a resolution to the extent that justice delivered via ADR would in many ways meet Tom Campbell’s definition of justice as ‘equality plus desert’ where the objective is for individuals to get what they deserve.[5] ADR then appears keenly focused on delivering substantive justice and legitimacy in the eyes of participants with processes that empower parties to resolve conflict, by empowering them with independent and impartial non-determinative third party processes (mediation, conciliation) to help craft their own agreements. This point is underscored by Chinkin and Astor when discussing justice for groups often disadvantaged in law (for example women and indigenous people):

Where members of such groups find problems with the law, procedures, or costs of using the formal justice system, ADR may provide a better alternative. It can allow such groups to avoid what they may find to be oppressive contact with the formal justice system. In particular it can allow resolution of ‘internal’ disputes between members of those groups according to shared values, rather than the values of the formal justice system.[6]

With a focus on substantive justice it may be unsurprising to the reader that compliance rates are usually high for ADR agreements, particularly when they have been negotiated from a perspective using the parties’ shared interests and commonalities.

Wise agreements are a focus of the work of Fisher and Ury (and Patton in later editions) whose book ‘Getting to Yes’ established a framework called Principled Negotiation (an evolution on Integrative Negotiation).[7] This advantageous approach to negotiation promotes the separation of people from the problem; a focus on shared interests, not positions; the generation of options for mutual gain; and an insistence on using objective criteria or standards by which to value the agreement. This collaborative approach to negotiation can extend into mediation and help keep the parties away from the courts. The success of mediation is evident in that mediation is a mandatory process for anyone entering the Family Court for divorce proceedings, and Relationships Australia report success with approx. 70% of clients with whom they work, in that after mediation they do not proceed to court.[8] Compliance with mutually crafted agreements is high as disputants are able to resolve the conflict and as observed by Tania Sourdin “there is some evidence that, in general, settlements that are reached as a result of ADR processes are more likely to be complied with and be ‘lasting’”.[9] This compliance may be assisted with the advantage that ADR delivers agreements that are confidential and away from public view.

Confidentiality of judicial decisions and non-disclosure of the facts of a case are not concepts generally linked with litigation; therefore, staying away from the courts may be of interest to any party looking for privacy in the dispute resolution process. This is true of FDR processes mentioned earlier for parties seeking to end a marriage, with Relationships Australia ‘Family Dispute Resolution’ brochure[10] indicating the benefit that ‘services are private and confidential’. When parties go to court the process is entirely visible and open to the public seated in the gallery, available to be reported in law journals and published in the media. For complicated matters particularly involving complex commercial disputes (like IBM v Fujitsu)[11] the dispute process continuum offers arbitration as the last, and ideally confidential, step before litigation. The desire for arbitration to remain confidential is underlined in an online brief by West Australian barrister Steven Standing who wrote “arbitration is often part of commercially sensitive and confidential contractual arrangements, and parties generally expect that the arbitration proceedings will also be confidential.”[12] However, Standing also observed that when third party information is required during an arbitration, the process potentially exposes aspects of the arbitration to public knowledge, and there can be costly processes in maintaining confidentiality when information gathering creates confidentiality issues for third parties. ADR, then, needs to be understood as suite of dispute resolution processes which may be both advantageous and disadvantageous for either one, or all, of the parties to a dispute.

As indicated above the involvement of third parties in arbitration can be “time consuming and costly”[13] as the need to maintain confidentiality expands to include parties who become involved in the dispute. Additionally, from the most accessible entry points in the ADR process (negotiation and mediation) through to arbitration, parties progressively cede control over the process, and face increasing financial and personal transaction costs. This progression towards litigation, with its adversarial battleground and ultimate application of judicial power, ends at arbitration: the final frontier away from the courts. Arbitration can be as expensive as litigation as by this stage parties have not only retained the services of lawyers (not used earlier by the couple negotiating over a beer or meal at the local hotel), but also the running costs of the arbitration including the services of an arbitrator (often a retired judge), technical experts, interpreters, travel, accommodation and possibly interstate or international travel. Staying away from the courts is a key focus of ADR, although issues of power imbalance remain in all dispute resolution processes.

Any power imbalance between parties to a dispute can have a negative impact and be an impediment to delivery of substantive justice at any stage along the ADR continuum. In commentary on the report by the Access to Justice Advisory Committee,[14] Kathy Mack cited issues that contribute to a power imbalance during ADR which include inequality of bargaining power, disparity created by violence, economic differentials, information differentials, uncertainty over legal entitlements, and credibility issues.[15] Mack notes “the risks which face women in dispute resolution process are direct reflections of the factors by which women's subordination is maintained in society generally.”[16] In discussion of these previously mentioned issues, Kathy notes that the party with better financial resources (often the man in a family law dispute) will be better equipped to obtain financial advice and support during ADR. In addition, the party with the best information about finances (again often the man) will be better positioned to decide and plan strategies during meditation (which typically remains a direct negotiation between two parties with the assistance of a mediator). It is not a difficult proposition to assert these feminist perspectives onto any number of marginalised groups in society: indigenous, youth, individuals from lower socio-economic or non-English speaking backgrounds, or any group marginalised by a lack of education, financial resources or proximately to accessible support services. ADR, then, may deliver second hand justice or injustice in the eyes of some marginalised groups, providing a challenge to the notion of ADR being a method of achieving justice when understood and viewed by disempowered participants of any dispute resolution process.

III. CONCLUSION

ADR processes allow parties to a dispute significant control over the process with which they can resolve their dispute, but the advantages of using ADR as a means of conflict resolution need to be balanced against the disadvantages. ADR is usually much cheaper and quicker than litigation, with transaction and financial costs far lower than litigation, particularly at the lower end of the dispute resolution spectrum when utilising negotiation or mediation. ADR is fundamentally involved with the delivery of substantive justice, delivering parties an opportunity to get what they deserve by negotiating and crafting their own agreement. This concept of justice flows through to the creation of agreements with high levels of compliance, because parties that have been directly involved in the creation are likely to adhere to the agreement. Confidentiality is an important aspect of ADR as parties can resolve their disputes away from the public eye, often important for the resolution of both family and commercial disputes. However, particularly as the ADR process heads towards arbitration, maintaining confidentiality can add to the additional costs that parties face as they cede control over the process, and factor in the complications of third party players. Traditional societal power imbalances between disputants may be reinforced in ADR as participants from marginalised groups can lack economic, information or credibility powerbases from which to negotiate, possibly underscoring perspectives of second hand justice, or the difficulty of achieving justice, by these marginalised groups. ADR processes assist disputants to stay away from the expense of litigation, as well as providing directorial control over the process; insofar the overall benefits of ADR appear to recommend it as a viable course towards cost-effective and substantive justice, ADR advantages should be weighed against ADR disadvantages.

BIBLIOGRAPHY

1. Articles/Books/Reports

• Astor, H and CM Chinkin, Dispute Resolution in Australia (Butterworths, 2002)

• Bottomley, Steven and Simon Bronitt ‘Law In Context’ 2016 The Federation Press

• Campbell, Tom "Can the Law Deliver Social Justice?" (2001) 5(1) University of Western Sydney Law Review 43

• Commonwealth of Australia, Access to Justice Advisory Committee, Access to Justice – An Action Plan (1994)

• Fisher, Roger and William Ury and Bruce Patton, Getting to Yes (Random House Books, 2012)

• Mack, Kathy, ‘Alternative Dispute Resolution and Access to Justice for Women’ (1995) 17(1) Adelaide Law Review

• Sourdin, Tania, ‘Five reasons why judges should conduct settlement conferences’ 2011 (37)1 Monash University Law Review

• Standing, Steven, ‘Running an arbitration under the commercial arbitration act - some practical issues’ (2015) 42(5) Brief 42-45

1. Cases

• International Business Mach. Corp v Fujitsu Ltd., No. 13T-117-0636-85 American Arbitration Ass’n Commercial Arbitration Tribunal 4 (1987) (Mnookin and Jones, Arbs)

1. Legislation

• Australian Constitution

1. Treaties

• Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York, 1958, Vol. 330, p. 38, No. 4739 (1959) (entered into force on 7 June 1959)

[1] Relationships Australia representatives Denise and Mike speaking at Day 1 session of ADR block 28 November 2016.

[2] Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report No 89, Jan 2000 para 1.69 (ALRC 89).

[3] Bottomley, Steven and Simon Bronitt ‘Law In Context’ 2016 The Federation Press 162

[4] Above n 1. Cost for FDR mediation starts at approx. $150 according to speakers.

[5] Tom Campbell, ‘Can the Law Deliver Social Justice?’ 2001 (5)1 University of Western Sydney Law Review 43.

[6] H Astor & CM Chinkin, ‘Dispute Resolution in Australia’ (Butterworths, 2002) 40.

[7] Roger Fisher and William Ury and Bruce Patton, Getting to Yes (Random House Books, 2012).

[8] Above n1.

[9] Tania Sourdin, ‘Five reasons why judges should conduct settlement conferences’ 2011 (37)1 Monash University Law Review 151 [1].

[10] Brochure titled ‘Family Dispute Resolution’ available from Relationships Australia.

[11] International Business Mach. Corp v Fujitsu Ltd., No. 13T-117-0636-85 American Arbitration Ass’n Commercial Arbitration Tribunal 4 (1987) (Mnookin and Jones, Arbs).

[12] Steven Standing, ‘Running an arbitration under the commercial arbitration act – some practical issues’ (2015) 42(5) Brief 44.

[13] Ibid.

[14] Access to Justice Advisory Committee, Access to Justice – An Action Plan (Commonwealth of Australia, 1994).

[15] Mack, Kathy, ‘Alternative Dispute Resolution and Access to Justice for Women’ (1995) 17(1) Adelaide Law Review 146.

[16] Ibid.