Where is ADR used?

Contributed by HenryMoser and current to 27 July 2018

Legislation or contractual arrangements give rise to differing legal rights and obligations in relation to ADR.

Participation in ADR may be voluntary or mandatory. People may agree to use ADR when a dispute arises. Alternatively, a contract, code of practice or set of rules may require parties to use ADR. In some cases, a court may direct parties to use ADR.

In some situations, the outcomes of ADR processes may be binding and enforceable in a court of law. For example, an arbitration award may have the same effect as a court order. In other situations, the participants may need to take further steps before the outcome of an ADR process can be enforced.

Legislation or contractual arrangements may also provide legal protection for the parties or for the ADR practitioner. For example, the matters discussed in some ADR processes may be confidential, but, in other processes, they may be used in a later court hearing. In some circumstances, ADR practitioners may be immune from civil liability or prosecution.

Courts & tribunals

A number of courts, including the Supreme Court of Western Australia, the District Court of Western Australia and the Family Court of Western Australia, require that for ADR is considered before a matter goes to a hearing, which is regarded as a last resort. In fact, only a small percentage of disputes which go to court are ultimately determined by a judge. Parties are encouraged to consider ADR at each point of the court process.

Community & government organisations

Other ADR processes also take place quite independently of the court system. For example, private Mediators, some government departments, some Community Legal Centres, some not-for-profit agencies, provide mediation for disagreements and disputes on a wide range of issues. Some large organisations, such as universities, provide their own internal ADR processes to resolve disputes.

Private sector

A number of private Mediators provide mediation as part of their professional services. Others focus entirely on mediation. It is essential to establish the qualifications, affiliation with a professional group and experience of Mediators in private practice if you are intending to use a private Mediator.