ADR

The federal Attorney-General, Robert McClelland, has launched The Resolve to Resolve: Embracing ADR to Improve Access to Justice in the Federal Jurisdiction, a report by the National Alternative Dispute Resolution Advisory Council (NADRAC) on alternative dispute resolution (ADR) in the civil justice system. Resolve to Resolve, rather cruelly dubbed by one contact as 'promise to promise', complements the Commonwealth Access to Justice Strategy report noted recently.

NADRAC was asked last year to report on

strategies to remove barriers and provide incentives to promote the greater use of appropriate dispute resolution options as an alternative to formal litigation.

Its Resolve to Resolve report finds that ADR "remains significantly underutilised", with the key barrier being "a lack of knowledge and understanding" among the legal profession, litigants and general public.

The 39 recommendations include

* imposing a legislative obligation on prospective litigants to seek to resolve disputes before they go to court;
* developing a National ADR Protocol to promote consistent application of ADR principles and processes;
* developing a standards framework to improve the quality of ADR services;
* requiring lawyers and courts to provide appropriate information or advice to consumers regarding ADR processes;
* developing judicial case management courses focussing on ways in which judges can identify matters suitable for ADR;
* supporting development of strong community and private ADR services;
* providing a model dispute resolution clause as a template that may be voluntarily adopted in contracts;
* requiring Commonwealth agencies to include dispute resolution clauses in contracts; and
* improving data collection, evaluation and research to inform an evidence-based policy approach.

The report suggests obligations could appropriately be placed on legal practitioners and litigants, with the former for example being required to inform clients about

* the requirement to take genuine steps to resolve a dispute before commencing court/tribunal proceedings;
* private and community based services that may help dispute resolution;
* the advantages of nonadversarial dispute resolution;
* likely costs for which the client may be liable if unsuccessful; and
* the likely timeframe for any legal proceedings.

Parties could be obliged to file a statement setting out that they

* have taken genuine steps to resolve their dispute before commencing proceedings;
* have considered services outside the court that may assist them to resolve their dispute;
* understand the benefits of various ADR processes; and
* have obtained advice about estimated costs, cost exposures and timeframes for the proposed proceedings.

It notes controversy regarding whether mediation should be mandated, with the Attorney-General referring to Remuneration Planning Corp Pty Ltd v Fitton; Fitton v Costello [2001] NWSC 1208 in which Justice Hamilton considered cases in which mediation was successful despite an initial absence of consent:

It has become plain that there are circumstances in which parties insist on taking the stance that they will not go to mediation, perhaps from a fear that to show a willingness to do so may appear a sign of weakness, yet engage in successful mediation when mediation is ordered.

The report notes the need for exemptions from compulsion through consideration of

rgency, undue prejudice, safety, security, the subject matter of the dispute, public interest factors, and whether the dispute is essentially the same as has been previously before the same court or tribunal.

The report might be read in conjunction with the more cautious and nuanced Non-Adversarial Justice (Federation Press, 2009) by Michael King, Arie Freiberg, Becky Batagol and Ross Hyams.