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Alternative dispute resolution
chapterposted on 2017-12-06, 00:00 authored by Stephen ColbranStephen Colbran
This chapter provides an overview of the theory and practice of Alternative Dispute Resolution (ADR). It outlines the demand for methods other than litigation to resolve disputes, and focuses upon the growth of mediation, arbitration, and court-annexed procedures in Australia. Other methods of dispute resolution are also discussed. In the context of mediation, the structure of the mediation process is outlined, and the nature of consensual dispute resolution is explained. Four of the key features of mediation, namely accessibility, voluntariness, confidentiality and facilitation are analysed. Other issues such as power imbalance, enforceability of agreements to mediate and evaluation of mediation are also discussed. The process of arbitration is then introduced, and the requirements of the Commercial Arbitration Acts are outlined. The process of international arbitration, the most popular form of cross-border dispute resolution, is briefly discussed. Finally, court-annexed mediation and arbitration, mediator certification and practice standards, and the role of the legal profession in ADR practice are discussed. Underlying the discussion in this chapter are four broader goals: 1. to encourage readers to recognise some of the limitations of litigation and competitive negotiation; 2. to provide an evaluative introduction to mediation; 3. to help readers understand that the practice of law is broader than the practice of litigation; and 4. that the litigation rules themselves and professional responsibility statutes require that a case has a reasonable prospect of success and that reasonable efforts have been made to resolve the dispute without recourse to litigation.