Australian Developments and Practice Directions on ADR PDF

### Australian Developments and Practice directions on ADR On a Federal level, the Civil Dispute Resolution Act 2011 (cth) commenced. Commenced 1 August 2011 and encourages parties to take genuine steps to resolve a dispute before commencing certain legal proceedings in the Federal Court and Feder...

### Australian Developments and Practice directions on ADR On a Federal level, the Civil Dispute Resolution Act 2011 (cth) commenced. Commenced 1 August 2011 and encourages parties to take genuine steps to resolve a dispute before commencing certain legal proceedings in the Federal Court and Federal Circuit and Family Court. Objectives of the Act: - - - Costs consequences for non-compliance Applies to all general federal law matters in the Federal Court of Australia and the Federal Circuit and Family Court, unless the proceeding is excluded. Excludes proceedings relating to a civil penalty or criminal offence, appeals, ex parte proceedings and proceedings involving a vexatious litigant and proceedings under the *Family Law Act 1975*, the *Migration Act 1958*, the *Native Title Act 1993* and the *Fair Work Act 2009*. Because the context in the FC is commercial, there are very strong economic consequences for failure to participate in dispute resolution prior to hearing. On a Federal level, the FC has said that you have to think differently about resolution. ### Commonwealth Attorney General's Department Significant dispute resolution information - National Alternative Dispute Resolution Advisory Council (NADRAC), formed to give ADR related policy advice to the Attorney-General, operated between1995 and 2013 The [NADRAC National Principles for Resolving Disputes](https://www.ag.gov.au/sites/default/files/2020-03/Your%20Guide%20to%20Dispute%20Resolution.pdf) were published in 2012 and - - Identified 7 National ADR principles. Practitioners are expected to engage with these principles. ([www.nadrac.gov.au](http://www.nadrac.gov.au/)) 1. Self-responsibility is the first step. You must take responsibility for your contribution to the dispute and if you have any fault to admit. Making concessions. 2. Early resolution is good resolution. Helps address any power imbalance. 3. Listen and participate. 4. Be informed when choosing an ADR process. Legal advisors should be knowledgeable about which processes are suitable for different types of disputes. 5. Use ADR, then the courts. 6. Ask questions about ADR. 7. Share knowledge about ADR accurately with the broader community and the other side. ### Productivity commission report by Warren Mundy in 2014 (READ IN EXAM PREP) Also see the 2024 Report on the National Legal Assistance Framework. The scope of the Inquiry was to examine the costs of accessing justice services and securing legal representation, and the impact of these costs on access to, and quality of justice. Have regard to: 9\. alternative mechanisms to improve equity and access to justice and achieve lower cost civil dispute resolution, in both metropolitan areas and regional and remote communities, and the costs and benefits of these, including analysis of the extent to which the following could contribute to addressing cost pressures: a. early intervention measures b. models of alternative dispute resolution c. litigation funding d. different models of legal aid assistance e. specialist courts or alternative processes, such as community conferencing f. use of technology, and g. expedited procedures 10\. reforms in Australian jurisdictions and overseas which have been effective at lowering the costs of accessing justice services, securing legal representation, and promoting equality in the justice system The key issues from the report were: - Civil justice system is too slow, too expensive, too adversarial, and misleading - Many parties resolve disputes in the shadows of the court - Many are deterred from using low cost and informal DR mechanisms by fears regarding costs and uncertainty about where to obtain assistances. Federal bodies are only helpful for certain jurisdictions. - The interests of lawyers and clients do not always align. Lawyers profit off of lengthy disputes, even if it is inadvertently. It is usually not intentional but comes because of a missing skill set. We need to be thinking like problem solvers first and gladiators second. - More needs to be done by courts to avoid unnecessary expense. Time costing and billable hours creates a murky environment for clients to understand the value of the work done by their lawyers. Online forums during covid transformed the delivery of proceedings changed the behaviour of the FCFC. - The adversarial behaviour of parties and their lawyers hinders resolution. Changes to rules governing the conduct of parties would improve incentives to cooperate. - Court fees should be more systematic. They do not recoup the cost of engaging court staff and are not enough to deter disputes. Mainly they confuse disadvantaged litigants. - Disadvantaged Australians are more susceptible to, and less equipped to deal with legal disputes. More resources are required - Funding for legal assistance provides should be redirected ### The expectations of lawyers The expectation of a lawyer is to be a resolutionist. The message is consistent across local, federal, and state jurisdictions. **Solicitors conduct rules** Australian Solicitors' Conduct Rules 2023 FUNDAMENTAL DUTIES OF SOLICITORS 3\. PARAMOUNT DUTY TO THE COURT AND THE ADMINISTRATION OF JUSTICE 3.1. A solicitor's duty to the court and the **administration of justice** is paramount and prevails to the extent of inconsistency with any other duty. *Includes an obligation to identify and settle those cases that do not require judicial determination -- 7.2* Everything you do must be done through the lens of an obligation to facilitate justice. Client interest is secondary to your own and the courts. This also ties into clause 7. 7\. COMMUNICATION OF ADVICE 7.1. A solicitor must **provide clear and timely advice to assist a client to understand relevant legal issues and to make informed choices about action to be taken during the course of a matter,** consistent with the terms of the engagement. 7.2. A solicitor **must inform the client or the instructing solicitor about the alternatives to fully contested adjudication of the case which are reasonably available to the client, unless the solicitor believes on reasonable grounds that the client already has such an understanding** of those alternatives as to permit the client to make decisions about the client's best interests in relation to the matter. Clients should be made aware of the consequences of each choice that they may make. Must inform the client the consequences of a fully contested adjudication. Must allow the client enough information about what is in their best interests. 4\. OTHER FUNDAMENTAL ETHICAL DUTIES 4.1. A solicitor must also: 4.1.1. act in the best interests of a client in any matter in which the solicitor represents the client; 4.1.2. be honest and courteous in all dealings in the course of legal practice; **4.1.3. deliver legal services competently, diligently and as promptly as reasonably possible;** 4.1.4. avoid any compromise to their integrity and professional independence; and 4.1.5. comply with these Rules and the law. **Uniform Civil Procedure Rules 1999 (Qld)** [REG 5] Philosophy overriding obligations of parties and court 1. The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense. [PART 4 - ALTERNATIVE DISPUTE RESOLUTION PROCESSES] Focus on Mediation and Case Appraisal; referral and "reporting" mechanisms [REG 321] Proceedings referred to ADR process are stayed The Act contains the jurisdictional components. Regulations are usually made to adopt provisions in other legislation. Act is the primary power, the regulations sit alongside that. Rules are adopted by all courts and tribunals to govern how proceedings are governed in a body. These are more flexible, they are operational provisions. The UCPR governs on how proceedings are conducted. They ensure the proceedings that do not need to be before the court are weeded out. They facilitate the just resolution of the real issues in a dispute. Resolution and determination are distinct. **FEDERAL COURT RULES PART 28 ALTERNATIVE DISPUTE RESOLUTION** FEDERAL COURT RULES 2011 - RULE 28.01 -- General Parties must, and the Court will, consider options for alternative dispute resolution, including mediation, as early as is reasonably practicable. If appropriate, the Court will help implement those options. FEDERAL COURT RULES 2011 - RULE 28.03 -- Arbitration, mediation and ADR process If the Court orders that a [proceeding](https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_reg/fcr2011186/s34.161.html), part of a [proceeding](https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_reg/fcr2011186/s34.161.html) or matter arising in a [proceeding](https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_reg/fcr2011186/s34.161.html) be referred to an arbitrator, mediator or [suitable person](https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_reg/fcr2011186/s28.02.html), the arbitration, mediation or the ADR process must be carried out in accordance with this Part. The FCR ask parties to focus on which type of resolution. The FC has a well-established mediation and conciliation regime. The court itself can conduct mediation or conciliation with a registrar. **FCFC Practice Directions** In the FCFC there are 2 central practice directions. 6\. Dispute resolution 6.1 Parties are expected to make a genuine attempt to resolve their dispute. Parties are encouraged to use all appropriate dispute resolution processes, including the use of court-appointed registrars to resolve or narrow issues in dispute. 6.2 Options for dispute resolution, either by agreement or by court order, include conciliation, mediation and arbitration. 6.3 The Court expects parties to meaningfully participate in dispute resolution and make a genuine effort to resolve issues in dispute, including by exchanging relevant information in advance of mediation or another dispute resolution process. 6.4 In accordance with section 161 of the Act and Part 23 of the General Federal Law Rules, the Court may refer a proceeding for dispute resolution with a judge, a registrar or another person that the Court appoints. 6.5 The Court may refer the proceeding for mediation. Mediation is conducted by a registrar. Alternatively, the parties may use a private mediator appointed under the scheme conducted by the Law Society or independent Bar of the State or Territory in which the proceeding was commenced, or otherwise as agreed by the parties. Mediation may occur at any stage of the proceeding. 6.6 In accordance with rules 23.01 and 23.07 of the General Federal Law Rules, the Court may order arbitration and, with the parties\' consent, nominate an arbitrator. 6.7 Parties are expected to consider reasonable offers of settlement at any stage of a proceeding. Failure to do so may have costs consequences. 6.8 For more information about dispute resolution, see Part 23 of the General Federal Law Rules. In the family law arm, the Overarching Purpose *FCFCOA Act* -- to facilitate the just resolution of disputes a. according to law b. as quickly, inexpensively and efficiently as possible Central Practice Direction Family Law Case Management: Dispute resolution has been embedded in the case resolution pathway. You will start to recognise the matters that are capable of resolution. There has been a reduction in the time taken for matters to resolve before they get to a judge. **Central Practice Direction Family Law Case Management** **Dispute Resolution** 6.23 Unless exceptional circumstances exist, within 5 months of the date of commencement of a proceeding, the parties will be required to participate in Dispute Resolution. 6.24 For proceedings involving family violence and safety concerns, consideration will be given to whether Dispute Resolution is appropriate and whether measures can be implemented which will facilitate Dispute Resolution occurring as safely as possible. Such measures may include Dispute Resolution being conducted electronically or in separate rooms. Central Practice Direction Family Law Case Management 6.25 If the Court is satisfied, having regard to the means and resources of the parties, that it is appropriate for the parties to participate in a privately funded Dispute Resolution event, they will be referred to: a. private mediation; and/or b. private, legal aid facilitated or community-based FDR; and/or c. arbitration with the consent of the parties. 6.26 If the Court is satisfied, having regard to the means and resources of the parties, that it is appropriate for the parties to participate in court-based Dispute Resolution, a matter will be listed on a date within 5 months from the date of filing for: a. a Conciliation Conference; or b. a Judicial Settlement Conference; and/or c. a Family Dispute Resolution Conference pursuant to section 13C(1)(b) of the Family Law Act with a Registrar (as a Family Dispute Resolution Practitioner (FDRP)) and, where appropriate, a Court Child Expert (as a Family Counsellor). One of the issues in most jurisdictions is that you cannot force people into conciliation or arbitration. How do we get parties into a forum that they are willing to engage in? **Central Practice Direction Family Law Case Management** 6.30 The Courts expect parties to place themselves and each other party in the most informed position possible for any Dispute Resolution event, including by providing sufficient disclosure and obtaining any required valuations, so as to enable such events to be productive and to maximise the prospects of resolution. 6.31 If a Dispute Resolution event does not proceed as a result of a party\'s non-attendance or non-compliance with orders, directions or the Family Law Rules, costs consequences may follow. **Family law act and family dispute resolution** Section 60I Family Law Act - Family Dispute Resolution - Family Dispute Resolution Practitioners - *Family Dispute Resolution Regulations* - Family Relationships Centres In order to commence proceedings under the FLA, you must have engaged with a family dispute resolution practitioner. There are some publicly funded ones and others who are privately funded. To file, you need an FDRP s 60I certificate outlining the outcome of the DR. Could be that they agreed, one person did not attend, they did not reach an agreement etc. Family law is a good example of an area of law in which DR has become well incorporated into the process of disputes.