Douglas, Kathy --- "Editorial: ADR and settlement" [2017] PrecedentAULA 38; (2017) 141 Precedent 2

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ADR AND SETTLEMENT

Associate Professor Kathy Douglas

Increased use of alternative or appropriate dispute resolution (ADR) is one of the most important changes to our modern system of justice in the last 30 years. ADR, particularly mediation, is widely used to encourage settlement of court matters. A recent Productivity Commission Report recognised the value that it provides, noting that ‘ADR can also be less formal and more culturally appropriate than a court or tribunal hearing and this may suit some parties.’^[1] In the same vein, the Victorian Government’s August 2016 Access to Justice Review report^[2] recognised the ability of ADR to increase access to justice by providing a quicker and cheaper process and more satisfactory outcome for the parties.^[3]

Along with case management, ADR has contributed to a change in the legal profession’s approach to disputes. Understanding ADR can help lawyers to see the benefits of a non-adversarial practice; an approach to dispute resolution that promotes settlement if it is in the best interests of a client. Various pieces of legislation support the use of ADR and promote settlement, including the Civil Dispute Resolution Act 2011 (Cth). This legislation requires engagement with pre-action procedures. Under ss6-7, applicants and respondents must file ‘genuine steps’ statements prior to litigating. These genuine steps statements must include detail about party initiatives to engage with the dispute in a manner that promotes settlement including negotiation and mediation. Under s9, lawyers have a duty to advise their clients of the need to file a genuine steps statement and must assist them to do so.

There are also pre-litigation requirements under s60I of the Family Law Act 1975 (Cth), where family dispute resolution (most often family mediation) is required prior to litigation for matters relating to children, unless the matter falls within a number of exceptions to the requirement such as the presence of family violence.

In Victoria, the Civil Procedure Act 2010 (Vic) includes an overarching purpose ‘to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute.’^[4] Under s7(2) of that Act, an appropriate dispute resolution process, which includes mediation, is explicitly referred to as one method of achieving the overarching purpose.

Lawyers also now must consider alternatives to litigation when advising clients about their case under rule 7.2 of the Australian Solicitors Conduct Rules. There are a number of guidelines available to assist lawyers to represent clients in ADR. For example, The Guidelines for Lawyers in Mediations provided by the Law Council of Australia provides non-binding guidelines on lawyers’ practice in mediation.^[5]

ADR is used in many situations outside the litigation context. It is commonly used in our community to address neighbourhood disputes; in our workplaces to deal with conflict; in our schools to help children positively engage when there are disagreements; and in industry schemes. ADR is not without its challenges and groups such as the Resolution Institute^[6] and the Australian Dispute Resolution Advisory Committee (ADRAC)^[7] encourage debate.

This edition makes an important contribution to our thinking about ADR and settlement. Writers are drawn from the judiciary and the profession to provide informed discussion of current issues. Their articles explore developments in the field and provide practical advice on a range of concerns such as cross-cultural disputes; injury claims and costs. They canvas recent initiatives such as informal settlement conferences for Stolen Generation claimants, a new approach at the Fair Work Commission and online ADR. Many articles provide valuable information such as the best approach to adopt when navigating compensation claims. Complex issues, such as the mediation of historical sexual abuse cases, are explored from a number of perspectives. Other articles provide a critical perspective about what settlement of legal disputes should attempt to achieve or point to the need for data to inform change. These articles are a celebration of ADR processes in both courts and tribunals that demonstrate the promise of ADR in dealing with disputes.

Associate Professor Kathy Douglas is Deputy Head in the RMIT Graduate School of Business and Law. She is a member of ADRAC and researches in the area of conflict, mediation and tertiary education. PHONE [phone] EMAIL [e-mail].

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^[1] Productivity Commission of Australia Inquiry Report, Access to Justice Arrangements Vol. 1 (2014), 286.

[2] Victorian Government Department of Justice and Regulation, Access to Justice Review (2016) 193–242.

[3] Ibid, 195.

^[4] Civil Procedure Act 2010 (Vic) s7(1).

^[5] Law Council of Australia, Guidelines for Lawyers in Mediation (2007).

^[6] Resolution Institute, <https://www.resolution.institute>.

^[7] Australian Dispute Resolution Advisory Committee, <http://www.adrac.org.au> .