Australia's National Principles for Resolving Disputes

The National Alternative Dispute Resolution Advisory Council (NADRAC) has developed seven national principles for resolving disputes. The Council has created the principles to set out an approach to dispute resolution that is consistent with better access to justice.

NADRAC states on their website that they:

advocate the consistent application of the National Principles ... as an important information tool to assist people in dispute in considering ADR as an alternative, or an addition, to litigation.

The principles are largely about using ADR when you have a dispute, instead of going to court (and still using ADR even if you do end up in court!) and to offer information about how ADR aims to work so that you know what to expect if you choose to use an ADR mechanism.

National Principles for Resolving Disputes

1. People have a responsibility to take genuine steps to resolve or clarify disputes and should be supported to meet that responsibility.

2. Disputes should be resolved in the simplest and most cost effective way. Steps to resolve disputes including using ADR processes, wherever appropriate, should be made as early as possible and both before and throughout any court or tribunal proceedings.

3. People who attend a dispute resolution process should show their commitment to that process by listening to other views and by putting forward and considering options for resolution.

4. People in dispute should have access to, and seek out, information that enables them to choose suitable dispute resolution processes and informs them about what to expect from different processes and service providers.

5. People in dispute should aim to reach an agreement through dispute resolution processes. They should not be required or pressured to do so if they believe it would be unfair or unjust. If unable to resolve the dispute, people should have access to courts and tribunals.

6.  Effective, affordable and professional ADR services which meet acceptable standards should be readily available to people as a means of resolving their disputes.

7. Terms describing resolution processes should be used consistently to enhance community understanding of, and confidence in, them.


If you would like to read more on NADRAC's National Principles for Resolving Disputes, click here.

Mediation – opening and welcoming by the mediator

The mediator’s opening statement sets the tone for the mediation and helps the mediator develop a rapport with the parties. The mediator needs the parties to develop a confidence in the process, and in them as a mediator, otherwise they may as well all shut up shop and go home now. If a mediator struggles to gain the confidence of the parties that they are a capable person to mediate their dispute then it can be hard to reach a resolution, unless the parties are feeling particularly amicable (one can dream!).

The way that the mediator conducts the opening and welcome will of course vary with mediator style and personal preference. This is a good thing because this variation will mean that the mediator is explaining the process and setting the tone for the session in a manner that they will feel comfortable with and that in turn, will help the parties to feel more comfortable. One thing that is important though, regardless of personal style, is that both parties should feel that the mediator has a balanced approach. The mediator can easily achieve this by sharing their body language and eye contact evenly between the parties.

So what actually should be included in the mediator’s opening statement? The list below outlines the basics that are generally covered in the welcoming by the mediator.

·       Welcome and introductions including how people want to be addressed (Dr Roberts? Madame Mouse?)

·       Explain the role of the mediator including that they do not have a role in deciding the outcome

·       Explain the mediation process

·       Confirm the agreed timeframe for today’s session

·       Confirm the “Mediation Agreement” is understood and signed

·       Discuss confidentiality

·       Outline the guidelines of conduct

·       Remind the parties they are there to try to reach a resolution and obtain a commitment from all parties to begin

Mediation – the basics

The Australian National Mediator Approval Standards defines mediation as:

“a process in which the participants, with the support of a mediator, identify issues, develop options, consider alternatives and make decisions about future actions and outcomes. The mediator acts as a third party to support participants to reach their own decision.”

The mediator may assist the participants to:

·       communicate with each other

·       identify, clarify and explore disputed issues

·       generate and evaluate options

·       consider alternative processes for bringing any dispute or conflict to a conclusion

·       reach an agreement or make a decision about how to move forward and/or enhance their communication in a way that addresses participants’ mutual needs with respect to their individual interests based upon the principle of self determination.

There are a number of different models of mediation. However, the process of mediation usually looks something like:

1.     Opening & welcome by the mediator

2.     Opening comments from the parties

3.     Mediator reflects on the parties’ comments and identifies the issues

4.     The issues are explored in detail

5.     Private sessions (discussions between be the mediator and each party privately)

6.     Negotiation

7.     Private sessions

8.     Closure

This process can vary depending on mediator style and the willingness of the parties to remain in a group forum to explore the issues. Steps 5, 6 and 7 can be repeated multiple times depending on the vigour with which the parties are negotiating!

A few other points to note in relation to mediator conduct ….

Mediators:

·       are impartial

·       manage the process

·       facilitate communication

·       help the parties to hear and understand each other

·       assist parties to evaluate alternatives and options

Mediators do not:

·       give advice

·       determine the solution

Back to Basics

Mediation, ADR, conciliation and facilitation are the buzz words of the business and legal worlds at the moment.
 
But what do these words actually mean?
 
To sort the wheat from the chaff, I’ve included an explanation below of each of these alternative dispute resolution terms. I’ve based them on the definitions from the National Alternative Dispute Resolution Advisory Council (NADRAC) who are the overseers of ADR in Australia but I’ve tried to make them sound slightly less like I had copied them from a dictionary.
 
ADR is an umbrella term for all the different processes that involve an impartial third party assisting those in a dispute to resolve the issues between them. An exception to this is a matter decided by a judge. These disputes don’t fall within the ADR umbrella and instead are resolved by a judicial outcome. ADR is commonly used as an abbreviation for alternative dispute resolution, but can also be used to mean assisted or appropriate dispute resolution. Conciliation, facilitation and mediation are all types of ADR.

Conciliation involves a dispute resolution practitioner (the conciliator) helping the parties in dispute to identify the issues they are arguing about, develop options, consider alternatives and try to reach an agreement. A conciliator will provide advice on the matters in dispute and/or options for resolution, but will not make a determination. This means the conciliator won’t decide the outcome of the matter like a judge would.

Facilitation is a process in which the participants (usually a group) use a dispute resolution practitioner (the facilitator) to help them identify problems to be solved, tasks to be accomplished or disputed issues to be resolved. Facilitation generally stops there; however sometimes the facilitator may continue to assist the participants to develop options, consider alternatives and try to reach an agreement. The facilitator doesn’t provide advice on the issues being discussed or how the matter can be resolved.

Mediation is much like conciliation in that a dispute resolution practitioner (the mediator) will help the parties in dispute to identify the issues they are arguing about, develop options, consider alternatives and try to reach an agreement. Like a conciliator, the mediator does not decide the outcome of the dispute but unlike a conciliator, they don’t provide advice about the issues being discussed or how the dispute could be resolved. Mediation may be undertaken voluntarily, under a court order, or subject to an existing contractual agreement.

For a more comprehensive overview of ADR terms, visit NADRAC’s website here.