Last Updated 19 December 2016
Alternative Dispute Resolution (ADR) consists of processes and practices that are used as alternatives to, or in conjunction with, litigation for resolving conflicts. This resolution is based on the principles of interest-based negotiation, consensual decision making and collaborative problem solving as opposed to the determination of rights. Most of these processes involve the parties negotiating to resolve their differences with the help of a neutral, independent third party who assists the parties to identify common interests and goals, and work out their own solution to a problem.
In many commercial contexts, parties will agree to use set ADR processes instead of litigation to resolve disputes.
More information about mediators, arbitrators, adjudicators, restorative justice practitioners and other professionals working in this field is available from the Resolution Institute and the Queensland Government publishes a list of dispute resolution centres.
The most well-known ADR process is mediation, which is an attempt to settle a legal dispute through active participation of a third party (mediator), who works with all parties to develop options, consider alternatives, find points of agreement and facilitate those in conflict to agree on a fair result.
This definition does not apply to all forms of mediation because of the variability in practice, process and objectives. Variables include the:
- commitment of the parties to the process
- choice and qualifications of the mediator
- degree of intervention by the mediator
- degree to which the parties can define the issues and relevance of matters
- legal status of any agreement reached.
Generally, community-based and non-court-linked mediation services focus on the interests and needs of the parties. Participation is voluntary, and the mediator has a facilitative role and does not comment on the strengths of the parties’ cases. Agreement is reached by consensus and usually is not enforceable. Often these processes may have an educative and even therapeutic focus, with an emphasis on improving the parties’ relationship and understanding of past issues.
Disputes that suit mediation
The most common disputes dealt with by mediation are:
- neighbourhood disputes involving fences, noise, children, pets and overhanging trees
- family and intergenerational disputes
- workplace disputes
- commercial disputes
- disputes relating to relationship separation
- property settlement disputes
- multi-party disputes, sometimes involving whole communities.
Further information about mediation is available from the Queensland Government’s Dispute Resolution Centre, and applications for mediation can be submitted online.
Court-based alternative dispute resolution
Dispute resolution services associated with courts or tribunals are intended to improve the efficiency of the court and reduce costs and delays of court hearings. Accordingly, these processes tend to be more focused on legally relevant issues, on the parties’ rights and on the strengths of their cases. Participation may be compulsory. The mediator is more likely to be interventionist and may even make suggestions about outcomes, and any final signed agreement resolving the matter is usually enforceable (as an order of the court). Case appraisers can also make provisional determinations, which may later become court orders.
The mediator may be a member of court staff (e.g. a registrar of the court), a member of the tribunal or court, or a private practitioner. Private mediators associated with courts and tribunals tend to be either lawyers or content experts.
In Queensland, all state courts can order parties to attend mediation or a case appraisal process under the Uniform Civil Procedure Rules 1999 (Qld) (see also the Supreme Court of Queensland Act 1991 (Qld), the District Courts Act 1967 (Qld) and the Magistrates Courts Act 1921 (Qld)). The Queensland Civil and Administrative Tribunal also regularly refers cases for mediation (see the Queensland Civil and Administrative Tribunal Rules 2009 (Qld)). You can also read more in the Dispute Resolution Centres Act 1990 (Qld).