Dispute Resolution in NSW: Exploring Mediation and Arbitration Options

In New South Wales, there are a variety of alternative dispute resolution (ADR) options to help parties resolve conflicts without court action. ADR offers a more informal, less stressful alternative, using mediation and support from a qualified dispute resolution practitioner. Find out more about dispute resolution options in New South Wales, the different processes, benefits and associated legislation. Let’s take a closer look.

What Is Dispute Resolution?

Dispute resolution is a process where an independent third party, usually a dispute resolution practitioner, helps people resolve disputes without going to court. Settling issues via alternative dispute resolution methods can be the preferred option for both parties, as disputes are resolved faster and are more cost effective.

Why Choose Alternative Dispute Resolution To Resolve Your Issues?

Settling a dispute without going to court is why alternative dispute resolution is a more viable option for many individuals involved. There are several advantages to using an independent mediator to help resolve issues, including the following:

• Less costly than court proceedings
• It saves time as disputes can be resolved faster than the court process
• Informal environment which can be less stressful
• Greater flexibility as parties decide the mediation format
• Parties can determine the outcome which offers greater control and acceptance
• Conversations held in a mediation session are confidential
• Discover alternative solutions to disputes
• Improve future relationships between disputing parties

Alternative Dispute Resolution Options

Alternative dispute resolution (ADR) may occur before, during or after court proceedings. It is also possible that parties may participate in alternative dispute resolution within the court environment before a court hearing, which is a more formal process. In New South Wales, there are several different dispute resolution processes, and they are all designed to help people resolve conflicts without court action.  People who have a dispute with a trader, business or landlord can refer to the NSW Fair Trading for a dispute resolution process. The NSW Civil and Administrative Tribunal has a dispute resolution process available through its Consumer and Commercial Division.

What Are The Types Of Alternative Dispute Resolution (ADR) Processes?

The three different types of dispute resolution are as follows:

• Facilitative

• Advisory
• Determinative

In each circumstance, assistance, guidance and support is provided by an independent third party, and both parties agree to participate in the process.

Facilitative

The facilitative process helps parties identify issues in dispute, consider options and alternatives and attempt to reach an agreement,  The facilitative process may include conciliation, mediation, facilitation and facilitated negotiation.  

Mediation

The most common form of alternative dispute resolution is mediation. This is an informal method where disputing parties can identify the disputed issues, discuss options, consider alternatives and possible solutions, listen to each other, and reach an agreement with the support of a neutral person. Mediation is an effective method of dispute resolution, as it allows both parties to work together to reach an agreement.

What Happens At Mediation?

Mediation sessions can be adapted to suit the requirements of the individuals involved, but generally, there is a similar process that is followed: 

• Intake Session – The mediator gathers information from both parties independently
• Introduction – The mediator welcomes both parties and their support person and explains the format of the session
• Issues Summation – The mediator will summarise the issues in dispute
• Discussion – Both parties will have an opportunity to discuss the issues and raise any concerns
• Negotiation – Possible options for resolution will be discussed and negotiated
• Agreement – If an agreement is reached, the details are recorded in writing. If no agreement is reached, further mediation may be required

Conciliation

Conciliation dispute resolution uses an expert, often with professional knowledge, to help advise relevant information about the subject in dispute. The mediator does not make any decisions on the parties’ behalf but will help them reach an agreement by offering expert advice and leading them to a resolution.

Facilitation

Facilitation uses an independent person to help people resolve disputes, similar to mediation, but generally, this process is used for groups experiencing disputes, such as body corporate. In this format, issues can be raised in a forum with differing viewpoints.  

Advisory

A dispute resolution practitioner will appraise the dispute and provide advice, focusing on the dispute facts and the law. They may also suggest potential outcomes and methods to help achieve a desirable solution. An example of the advisory process includes case appraisal and evaluation.

Determinative

In the determinative approach, disputes are evaluated by a dispute resolution practitioner, an expert in the issues involved, who will make an expert determination, which may involve hearing formal evidence from either party.  Types of determinative resolution include; arbitration, private judging and expert determination, and parties agree to be bound by the expert’s decision.

Arbitration

Arbitration is a more formal dispute resolution method, where an independent arbitrator hears each parties case, considers the evidence and makes a decision. Lawyer representation is permitted, and experts may be required to provide evidence. Arbitration is an effective alternative when the subject is highly technical, or when a confidential solution is required. The process may be voluntary, court-ordered or required as part of a contract. An arbitrator’s decision is binding.

What Legislation Applies When Handling Disputes In NSW?

The Attorney General’s department supports conflict management and early resolution of disputes within Australian Government agencies and has its own Dispute Management Plan. The department has issued a set of binding rules called the Legal Services Directory, which encourages agencies to consider methods of ADR before commencing legal proceedings. Legislation contained in the Civil Dispute Resolution Act 2011, encourages parties to take genuine steps to resolve conflicts before commencing legal proceedings.  The Family Law Act contains legislation stating that separating couples must make genuine efforts to resolve their conflict through family dispute resolution before applying to court.

Summary

Dispute resolution is a process where an independent third party, usually a dispute resolution practitioner, helps people resolve disputes without going to court. There are several advantages to using an independent mediator to help resolve issues, such as being less costly than court proceedings, and it is an informal and less stressful environment where conflicts may be resolved quicker. In New South Wales, there are several different dispute resolution processes, all are designed to help people resolve conflicts without court action, facilitative, advisory and determinative. The most common form of alternative dispute resolution is mediation, which is an effective method of dispute resolution as it allows both parties to work together to reach an agreement.

FAQs

What Is The Process Of Dispute Resolution?

Mediation sessions can be adapted to suit the requirements of the individuals involved, but generally, there is a similar process that is followed: 

• Intake Session – the mediator gathers information from both parties independently
• Introduction – the mediator welcomes both parties and their support person and explains the format of the session
• Issues Summation – the mediator will summarise the issues in dispute
• Discussion – both parties will have an opportunity to discuss the issues and raise any concerns
• Negotiation – Possible options for resolution will be discussed
• Agreement – If an agreement is reached, details are recorded in writing. If no agreement is reached, further mediation may be required

What Legislation Applies To The Handling Of Disputes In NSW?

Legislation contained in the Civil Dispute Resolution Act 2011 encourages parties to take steps to resolve conflicts before commencing legal proceedings.  The Family Law Act contains legislation stating that separating couples must make genuine efforts to resolve their conflict through family dispute resolution before applying to court.