LLB103 Lecture Notes - Lecture 2: Oxymoron, Adversarial System, Determinative
LLB103 DISPUTE RESOLUTION LECTURE 2: Introduction to ADR and the Spectrum of dispute resolution
forums
Lecture Outline:
●The spectrum of ADR process options
●How the spectrum can assist us to assess when and in what circumstances particular processes are
most useful
●To consider the key differences between the most commonly used processes.
THE HISTORY OF DISPUTE RESOLUTION
Statutory regulation
●ADR processes are being mentioned in pieces of legislation more and more frequently at a Queensland
level (State) and Commonwealth level (Federal) as an aspect parties must do, either before a court
action or perhaps during a court action. Statutory regulation of ADR has forced it as a profession to
formalise processes and to ensure that they are accountable.
Court-annexed (Court connected) dispute resolution
●Captures the idea that the court can refer parties to an ADR process which might be conducted by an
individual from an external dispute resolution provider body.
●The fact that parties can either with or without the permission be forced to engage within an ADR
process to formalised processes.
Accrediting bodies and schemes (also provide training)
●Is another cause for the advancement of ADR processes within Australia. By that meaning, there are
bodies whose fundamental job is to help train DR practitioners to provide training programs. On the
basis of these training programs, if the individuals who are under training meet the outlined
competencies, then they will be accredited accordingly.
●In his book, Spencer makes reference to the Institute of Arbitrators and Mediators Australia (IAMA),
LEADR (originally Lawyers Engaged in ADR) now Leading Edge ADR. Spencer notes that these
accrediting bodies merged into a DR supergroup called Resolution Institute; the biggest training
provider of DR.
Cost and delay of court hearings
THE SPECTRUM OF DISPUTE RESOLUTION OPTIONS
●The spectrum moves from informal/consensual processes where the parties retain control and decide
the outcome of their dispute to formal/adjudicative processes where the parties cede control and a third
party neutral decides the outcome.
●Spencer stresses 3 characteristics of the spectrum:
1. Formality of processes when moving from 1 end to the other:
■May refer to rules of evidence, language and procedures
2. Consensuality involved in such processes:
■Consensuality of outcome: you are involved in the process where the parties have
to agree on the outcome itself for that outcome to have any meaning as opposed to
having a decision imposed upon them. This is apparent on the left side of the
find more resources at oneclass.com
find more resources at oneclass.com
spectrum; a dispute does not end until both parties agree on the outcome. This may
be contrasted by processes such as litigation or arbitration where the independent
third party makes a decision on behalf of the parties; there is no consensuality of
outcome. Compared to consensuality of participation, it has remained fairly stable
feature.
■Consensuality of participation: whether the parties consent to participate in the
matter or not. For example, an individual bringing an action of litigation has agreed to
be present whereas the defendant does not and therefore, there is no consensuality
of participation. Moreover, the idea of consensuality of participation is eroding as the
Court can order both parties to mediate or engage in a case appraisal.
3. Intervention by the third party: As we move towards the arbitration and litigation end of the
spectrum, the independent third party especially the DR practitioner is intervening within the
dispute. In a negotiation and in certain models of a mediation, the third party allows the parties
to fulfill their duties. In arbitration and litigation, there is always an ultimate form of third party
intervention of which they come to a decision.
The Dispute Resolution Spectrum
Facilitative Processes Advisory Processes Determinative Processes
Walk away
or keep it
Negotiation Mediation Conciliation Case
Appraisal
Arbitration Litigation
●We have to beware that it does not result in too simplistic a map, or an over-generalisation or distortion
of the nature of processes. Especially processes such as mediation which are flexible as its
characteristics may change to suit the members of parties.
DEFINING FACILITATIVE PROCESSES
On the spectrum of dispute resolution, we can classify processes as being either facilitative, advisory or
determinative. Facilitative processes ...
●Are processes in which a dispute resolution practitioner assists the parties to a dispute to identify the
disputed issues, develop options, consider alternatives and endeavours to reach an agreement about
some issues or the whole dispute. Examples of facilitative processes are mediation, facilitation and
facilitated negotiation (NADRAC, 2003, p.7).
●The focus within this definition is the parties. The role of the independent third party is to assist the
parties themselves to do the tasks outlined above. It is not the role of the facilitator mediator for example
to do those things on behalf of the parties.
●The third party facilitates, they do not advise or evaluate
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Llb103 dispute resolution lecture 2: introduction to adr and the spectrum of dispute resolution forums. How the spectrum can assist us to assess when and in what circumstances particular processes are most useful. To consider the key differences between the most commonly used processes. Statutory regulation of adr has forced it as a profession to formalise processes and to ensure that they are accountable. Captures the idea that the court can refer parties to an adr process which might be conducted by an individual from an external dispute resolution provider body. The fact that parties can either with or without the permission be forced to engage within an adr process to formalised processes. Is another cause for the advancement of adr processes within australia. By that meaning, there are bodies whose fundamental job is to help train dr practitioners to provide training programs.
