Editors --- "Alternative Dispute Resolution" [2010] AdminRw 15; (2010) 59 Admin Review 70

• Alternative dispute resolution
• Commonwealth
• New South Wales
• Victoria

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Alternative dispute resolution

Commonwealth

On 13 June 2008 the Attorney-General issued to the National Alternative Dispute Resolution Advisory Council a reference asking that it inquire into and identify strategies for removing barriers to and providing incentives for the use of alternative dispute resolution instead of civil proceedings and during court and tribunal processes. The Attorney-General has also asked for advice on initiatives government might take to support the recommended strategies, including legislative action.

On 26 March 2009 the Advisory Council released its issues paper, ADR in the Civil Justice System. It subsequently received over 60 submissions and held extensive consultations with a variety of interested parties in Sydney, Melbourne and Canberra.

On 4 November 2009 the Attorney-General launched the Advisory Council’s report on alternative dispute resolution in the civil justice system, The Resolve to Resolve—embracing ADR to improve access to justice in the federal jurisdiction.^[1] The report contains 39 recommendations aimed at encouraging greater use of ADR in civil proceedings, including the following:

• a legislative obligation on prospective litigants to take genuine steps to resolve disputes before they go to court

• developing and widely promulgating a National Alternative Dispute Resolution Protocol to promote the consistent application of ADR principles and processes

• requiring lawyers and the courts to provide appropriate information or advice in relation to ADR processes

• developing a standards framework for advisory ADR processes—similar to the framework that was developed for mediators (the National Mediator Accreditation System, or NMAS)

• developing judicial case management courses focusing on ways in which judges can identify matters suitable for referral to ADR and suitable ADR techniques and mechanisms

• supporting the development of accessible and effective community‑based and private ADR services

• providing a model dispute resolution clause as a template that can be voluntarily adopted in contractual documents

• requiring Commonwealth agencies to include dispute resolution clauses in contracts

• improving data collection, evaluation and research in the federal civil justice system to ensure that future ADR policy is built on a strong evidence base.

The Commonwealth Government has already adopted a number of the recommendations put forward by National Alternative Dispute Resolution Advisory Council. In December 2009 the Attorney-General asked NADRAC to undertake three new references. These are to develop a statement of national ADR principles and a supporting guide, to provide advice on legislative changes required to protect the integrity of various ADR processes, and to develop a model dispute management plan for Commonwealth agencies.

New South Wales

In May 2009 the New South Wales Government released the discussion paper ADR Blueprint. From this blueprint the Government has released two of several proposed ADR blueprint draft recommendations reports. The first proposes that people be required to take all reasonable steps to resolve their disputes without going to court. The second deals with ADR in government and states that there are three main strategies for developing a less litigious culture in New South Wales:

• encouraging people to use other suitable dispute resolution strategies

• changing the culture of the legal profession, so that it becomes less focused on running cases and more focused on solving problems

• structuring the civil justice system so that, when litigation is contemplated or begun, the way the system works increases the likelihood that the dispute will be settled quickly.

In August 2009 the Government released ADR Blueprint Draft Recommendations 1: pre-action protocols. The report contains four recommendations: that the Civil Procedure Act be extended to pre-action conduct; that a guide for people in civil disputes be developed; that pre-action protocols for introduction in family provision disputes be developed and other types of disputes amenable to pre-action protocols be identified; and that courts and tribunals review their rules and practice notes to ensure that ADR is considered as early as possible.

In September 2009 the Government released ADR Blueprint Draft Recommendations Report 2: ADR in government. Among the report’s draft recommendations are that the Model Litigant Policy be strengthened to give greater emphasis to the role of ADR in resolving civil claims and litigation, that the Government prepare an annual public report on its use of ADR, and that ADR clauses be included in all appropriate government contracts.

Further information can be obtained from: www.bocsar.nsw.gov.au/lawlink/ADR/ll_adr.nsf/vwFiles/ADR_blueprint_draft_recs1_preaction_protocols.pdf/$file/ADR_blueprint_draft_recs1_preaction_protocols.pdf and www.bocsar.nsw.gov.au/lawlink/ADR/ll_adr.nsf/vwFiles/250909_updated_adr_recommendations_report2.pdf/$file/250909_updated_adr_recommendations_report2.pdf.

Victoria

On 6 May 2009 the Victorian Parliament’s Law Reform Committee released a report proposing future directions for alternative dispute resolution and restorative justice in Victoria.^[2] The report contains 44 recommendations designed to realise the potential of ADR services in Victoria, ensure

high-quality services, and make ADR accessible to all members of the community. Among the committee’s recommendations are the following:

• that barriers to access for members of the community be reduced—including by establishing more dispute settlement centres throughout the state, providing more assistance for people from non–English speaking backgrounds and developing culturally appropriate services

• that Victorians’ capacity to resolve civil disputes themselves be augmented through education in conflict resolution and communication skills

• that the supply of ADR services be expanded—particularly by exploring the scope for additional industry ombudsman schemes and by conducting research into the potential for using online ADR.

The committee’s report contains 34 recommendations aimed at improving current restorative justice programs and making restorative justice more widely available in Victoria. Among other things, the recommendations concern the following:

• improving the experiences of victims participating in the Youth Justice Group Conferencing Program, a restorative justice program operating in the Children’s Court of Victoria, through increased provision of information and support to victims and more follow-up with victims after a group conference

• increasing the quality and consistency of restorative justice services through the training and accreditation of service providers

• expanding restorative justice programs, including a staged roll-out of such programs to suitable adult offenders, a pilot program using restorative justice for some more serious offences (but not for family violence and sexual offences) and a trial restorative justice program for suitable offenders after they have been sentenced by a court.

Further information can be obtained from www.parliament.vic.gov.au/LAWREFORM/inquiries/ADR/.

On 28 May 2008 the Victorian Law Reform Commission released a report on its inquiry into the civil justice system.^[3] The terms of reference required the commission to undertake a number of tasks, including identification of the goals of the civil justice system and the principles that should guide the rules of civil procedure. The commission was also asked to identify the key factors that influence the operation of the civil justice system, including matters affecting the timeliness, cost and complexity of litigation.

The report made 177 recommendations with a view to making civil litigation in Victoria cheaper, simpler and fairer. It recommended increasing ADR resolution through greater use of an increased array of options for ADR, more effective use of industry dispute resolution schemes and additional provisions for mandatory referral to ADR.

Further information can be obtained from www.lawreform.vic.gov.au/wps/wcm/connect/justlib/Law+Reform/Home/Completed+Projects/Civil+Justice/.

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^[1] Available at www.nadrac.gov.au.

^[2] Law Reform Committee 2009, Inquiry into Alternative Dispute Resolution and Restorative Justice, Parliament of Victoria, Melbourne.

^[3] Victorian Law Reform Commission 2008, Civil Justice Review: report, Victorian Law Reform Commission, Melbourne.