Other ways to resolve business disputes
NADRAC is the National Alternative Dispute Resolution Advisory Council which is an independent body that provides policy advice to the Australian Attorney-General about developing ADR and promoting the use of ADR. It has published the seven National Principles of ADR.
National Principal 1: Self-responsibility is the first step
To resolve your dispute, you need to take responsibility for:
- being clear about what is in dispute
- genuinely trying to resolve the dispute
- seeking support when you need it.
National Principle 2: Early resolution is good resolution
Resolve your dispute in the simplest and most cost effective way, and as early as you can. You can still use ADR processes if you go to court.
National Principle 3: Listen and participate
Show your commitment to the dispute resolution process by listening to other views and by putting forward and considering options to resolve your dispute.
National Principle 4: be informed when choosing an ADR process
Seek out and use information to help you:
- understand what to expect from different processes and service providers
- choose an appropriate dispute resolution process.
National Principle 5: Use ADR, then the Courts
Try to reach an agreement through ADR processes first. If you are unable to resolve your dispute through ADR, then think about using courts or tribunals.
National Principle 6: Ask questions about ADR
Ask about and expect effective, affordable and professional ADR services that meet acceptable standards.
National Principle 7: Share knowledge about ADR accurately
Describe dispute resolution processes consistently to help other people understand and be confident about using ADR.
A Closer Look at the Alternatives
Negotiation
Sometimes called ‘assisted negotiation’ (because normally parties will seek the help of their solicitor or another trusted professional) negotiation simply involves talking to the other party in a structured way to see if a solution can be reached.
Mediation
An independent person who is a trained and experienced mediator helps the parties to seek out possible solutions. The mediator does not impose a determination or make a decision for the parties.
There is no obligation to reach agreement but sometimes a court will order mediation, in which case you will have to take part even if no result is achieved. The majority of mediations are successful.
Conciliation
Similar to mediation, conciliation generally involves a conciliator skilled and knowledgeable about the issues of the dispute, who will be more pro-active in advising the parties on the strengths and weaknesses of their positions and in suggesting solutions. Again there is no obligation to reach agreement.
Early neutral evaluation
The parties put their cases to an independent person (generally an expert in the field of the dispute or a senior barrister) who provides their advice on the likely outcome of the dispute if it were to go to court. This process is particularly useful where there are technical and/or legal issues involved.
Arbitration
Arbitration is best thought of as a private court. The parties put their cases to a person or persons of their agreed mutual choice and that person makes a decision that is final and binding on the parties. There is legislation in most states which regulates how arbitrations are to be conducted but the provisions are not overly prescriptive and some flexibility is possible.
Expert determination
Not dissimilar to arbitration except that the arbitrator is specifically chosen for their technical expertise in respect of the issue of the dispute. Again, the result is final and binding on the parties.
Litigation
If all else fails litigation involves the dispute being heard and decided by a court. A time-consuming, lengthy and costly process, litigation rarely leaves either party completely satisfied with the results.