In November 2013, the federal government submitted its response to a public inquiry launched by the Productivity Commission into Australia’s civil dispute resolution system. In the 46-page submission, the Attorney General’s Department urged the Commission to further examine the use of Alternative Dispute Resolution (ADR) services to promote a fairer and more accessible justice system.
In its submission, the Department stated that ADR is emerging “as a significant avenue” in providing disputants with access to justice. The Department made the following recommendations:
- increased ADR education and training for members of the legal community;
- development of uniform standards for ADR practitioners; and
- development of a database to evidence the effectiveness of ADR processes.
Education and Training
The Department outlined a recent survey conducted by the National ADR Advisory Council (NADRAC), which evidenced increasing availability and use of ADR in legal practice. As a result, future and current lawyers must learn how to both participate and advise clients on ADR processes. Further, ADR affords clients greater flexibility, confidentiality and often more favourable outcomes.1
The Department also considered the benefits of providing further training to court and judicial officers in order to increase awareness of the benefits of ADR. The Department argued that increasing opportunities for ADR education and training would result in a reduction in time and cost to litigants and improve access to justice for ordinary Australians.
Development of Standards
The Department acknowledged the requisite standards for accredited mediators and recommended that similar conduct obligations be placed on all ADR practitioners. In order to become an accredited mediator, an individual must provide:
- evidence of good character;
- evidence of insurance, statutory indemnity or employee status;
- an undertaking that they will comply with practice standards and legislative requirements;
- evidence of their relationship with an appropriate organisation or association that has “ethical requirements, complaints and disciplinary processes”2; and
- evidence that they have met the threshold for education, training and experience.
Once accredited, mediators are required to adhere with Practice Standards that outline procedural fairness, impartiality requirements and confidentiality issues. The Department recommended that similar practice standards be imposed on all ADR practitioners, allowing the government to regulate ADR services without legislative intervention.
The Department acknowledged that information on ADR processes is currently collected in an “ad hoc way”. Referencing the Federal Court Annual Report 2012-2013, the Department noted that:
- there is a positive trend towards referring matters to ADR processes including, but not limited to; experts’ conferences, mediation, arbitration and case management conferences;
- the number of matters referred have almost doubled in nine years; and
- over 60% of matters referred to mediation were resolved in full or part in 2012-13 and the rate of resolution has remained consistent.
Despite this, the Department acknowledged that referrals only represented just 26% of all applicable filings.
While there is no clear indication as to whether the recommendations of the Department will be accepted, the submission evidences growing support for the use of ADR processes in the legal industry. If implemented, the recommendations would arguably encourage a greater emphasis on education and, as a result, higher standards of conduct amongst ADR practitioners.
More than 140 submissions have been made to the Commission since the inquiry launched in June 2013. The Commission is still currently accepting submissions to be considered prior to the release of a draft report in April this year. A final report to the government will be released in September 2014.