Mediation and Alternative Dispute Resolution

If you have a legal problem but do not want to be involved in a draining legal battle, consider one of the many alternatives to dispute resolution. Alternative dispute resolution (ADR) is the term used to describe different methods to help solve your legal problem other than going to court. They include:

Mediation

Mediation is a popular way of resolving everything from neighbourhood disputes to multi-million dollar commercial contract disputes. An independent person helps you and the other parties work out the issues in dispute and come up with an answer which everyone accepts. It is up to you to make an agreement, but the parties decide what is included in that agreement thereby retaining control of the outcome. The mediator will not make a decision for the parties.

It is quicker and easier to go to mediation than to court. This means you can use mediation at an early stage in the dispute, before a lot of legal costs have been incurred and both sides have become entrenched in their positions.

Many of the outcomes reached at mediation cannot be made by a court. For example, a court can only interpret what a contract means. It cannot help you renegotiate the contract if both parties decide that is necessary. In mediation you can provide for commercial considerations and end up with better outcomes for all concerned.

Many courts and tribunals may order you to try mediation before taking the matter to trial. Otherwise it is voluntary. This means you cannot force the other party to mediate - they have to agree. If you choose to mediate and an agreement is not reached, you can still go to court.

Conciliation

In this method the independent person is more active in finding a solution. Usually, the conciliator is an expert on the subject of the dispute. The conciliator will help you and the other parties look at the strengths and weaknesses of your arguments but will not decide the issue for you.

As with mediation, some courts and tribunals may order you to try conciliation before going to trial. You cannot force another party to conciliate. If you choose to conciliate and an agreement is not reached, you can still go to court.

Collaborative Law

Collaborative law is designed to focus on resolution and minimize conflict in family law matters. Separating couples and their lawyers agree to make a good faith attempt to reach a mutually acceptable settlement without going to Court. The focus of all participants is therefore entirely on reaching a negotiated settlement.

Arbitration

Using this process the parties to the dispute choose an independent third party known as an arbitrator to act as a judge. The person appointed makes a decision which is legally binding on you and the other parties. Arbitration is usually considered for commercial disputes.

For a list of QLS approved arbitrators, contact Felicity Culnane on (07) 3842 5914 or dmc@qls.com.au.

Adjudication

In Queensland, the Building and Construction Industry Payments Act 2004 (BCIPA), allows a process of rapid adjudication to resolve progress payment disputes within the building and construction industry. The Queensland Law Society has a list of skilled Adjudicators who can make quick, legally enforceable decisions under BCIPA. For further information, refer to the QLS ANA tab on this website or contact Felicity Culnane on (07) 3842 5914 or dmc@qls.com.au.