On 8 April 2014, the Australian Government Productivity Commission released its draft report on ‘Access to Justice Arrangements’ for public consultation and input. The Commission’s terms of reference received in June last year were wide ranging, focussing on access to justice issues in both the public and private sectors. In particular, the Commission was asked to analyse the extent to which early intervention measures and models of alternate dispute resolution could contribute to addressing cost pressures currently experienced in the civil justice system.
Compulsory dispute resolution management plans
Of particular relevance for government agencies is the Commission’s draft recommendation 8.2 dealing with the preparation of dispute resolution management plans. The Commission’s draft recommendation is expressed in the following terms:
All government agencies (including local governments) that do not have a dispute resolution management plan should accelerate their development and release them publicly to promote certainty and consistency. Progress should be publicly reported in each jurisdiction on an annual basis commencing no later than 30 June 2015.
In making this draft recommendation, the Commission expressed its support for the work undertaken by the National Alternative Dispute Resolution Advisory Council in 2009 and 2010 in producing various guides and other materials to assist agencies in preparing dispute resolution management plans. The Commission also acknowledged that some agencies are in the process of developing tailored dispute resolution management plans, however it expressed the view that it is in the interests of both agencies and disputants alike that tailored plans are finalised as a priority.
In its consideration of the extent to which alternative dispute resolution is being used in Australian Government agencies, the Commission also referred to a survey of agencies conducted by Norton Rose Fulbright in 2012. A copy of the survey, including analysis of the results, is available here.
Drafting effective plans
For agencies contemplating or in the process of preparing dispute resolution management plans, the views expressed by the Commission in its draft report indicate a potential policy shift towards mandatory publication of dispute resolution management plans in the near future. To ensure compliance with the foreshadowed requirement and to also facilitate the benefits associated with effective dispute resolution management plans, agencies should be mindful of future developments in this area and focus on finalising their plans as a priority.
Critical to the successful development and implementation of such plans is an in-depth understanding of the kinds of disputes that commonly affect a particular agency and how they originate. In our view, an effective dispute resolution management plan will involve more than just the lawyers within an agency, with staff in line areas uniquely placed to identify disputes before they develop into costly battles. To support operational staff in this endeavour, it is vital that they receive adequate training to foster awareness of common warning signs and how best to address them. Communication of identified disputes to senior management is also important in order to address each dispute in the most appropriate way and regular monitoring of such reports will be key to ensure potential disputes are identified early. Systematic processes to ask staff whether they are aware of any disputes, or the seeds of dispute, are a useful way of encouraging this form of upward information flow.