Adr terminology Responses to nadrac discussion Paper



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Law Society of SA


Yes, the purpose of ‘ADR’ is to resolve a dispute.

Federal Magistrates Service

Parties access courts because they have a dispute that must be resolved. Therefore, from the perspective of a court, PDR or ADR must be focused on resolving or narrowing the issues which the parties have presented to the court.


While there are a number of other benefits to PDR, from the perspective of a court, the focus must remain on resolving or narrowing disputes.

Law Institute of Victoria

"Resolution" involves achieving an end result.


ADR should not be exclusively regarded as a process aimed at resolution of disputes. The purpose of ADR is not always about resolution. Some of the skills and processes used in ADR are highly applicable to forms of creative, or managed, problem solving and forward planning, in situations where no obvious dispute exists.
A “dispute” arises where two (or more) people (or groups) perceive that their interests, needs or goals are incompatible and they seek to defend or improve their respective positions, at the expense of others.
“Dispute resolution” means bringing the dispute to an end.
“Conflict resolution” can be distinguished from “dispute resolution”. It is possible to resolve a dispute without resolving the conflict. (See Gregory Tiller’s book “Resolving Conflict – A Practical Approach”.)

NSW Law Society

In the legal parlance of Law Society members a dispute is understood as a situation having a potential for litigation. The emphasis on the role of the Courts in determining law and interpreting statute will influence lawyers to accept the Court as the best and most logical procedure for determining disputes and in this context a dispute will be understood as a legal argument. This may belie other aspects of disputes which are presented to lawyers, such as psychological or substantive arguments. Legal arguments can be settled by reference to the law alone, however the hostility from differences between the parties will frequently remain after legal issues resolve.


Within ADR there is a recognition that lawyers think beyond the traditional approach and acquire expertise beyond the law. Broad definition of the term dispute will encourage that non-adversarial approach. It is therefore felt that the term dispute as it is commonly and widely used is an adequate general term which encapsulates the notion of issues which form part of any dispute and arise from the conflict which surrounds the protagonists. Some forms of ADR are not about ‘resolution’ of ‘disputes’. In particular, conferencing in a criminal justice setting is not directly the resolution of a dispute (although this may be a welcome outcome where participants know each other and where the commission of an offence can be sourced to a breakdown in the prior relationship).
Similarly the term resolution suggests a moving on which is also an essential tenant of the ADR philosophy. One of our members who also practices as a mediator reports an increase in work about “facilitation of non conflict issues”. There is also the concept of partnering and application of DR techniques in environmental planning. It may be that the culture is slowly approaching a system of enhanced dispute management. This reflects to dilemma of rigid definition and the need for ongoing review of terminology.
It is accepted that less than 10% of cases which start in a Court are determined by a Judge handing down a judgment after a defended hearing. In the vast majority of cases matters settle through negotiation – either by the parties directly or by their lawyers or by using conferences, mediation, conciliation or other assisted processes. Lawyers who understand and practice interest based negotiation will be more successful as “dispute resolvers” for their clients. The education of lawyers is an essential part of changing the legal culture towards interest based negotiation.

Question Seven - How should the position or role of the 'third party' or 'intervener' in ADR be defined or described?

Yvonne Craig

No definite label, as the service provider chooses own label which may vary with needs of service users ie. Ethnic groups may favour a familiar word (Muktars-Palestinians)


LEADR

Although third party is a legal term, as it is used in ADR it appears to be well understood.


However, the term in ADR could be further clarified and could be further distinguished from its legal counterpart by including words that also denote the process and the role of the third party. For instance:

  • “third party advisor” could be used when the role of the third party is to advise;

  • “third party facilitator” could be used when the role of the third party is to facilitate discussion or solutions;

  • “third party mediator” (if mediation is defined) could be used when the role of the third party is to mediate; and

  • “third party arbitrator”(if arbitration is defined and considered to be an ADR process) could be used when the role of the third party is to arbitrate.

A universal non-descriptive term which has been used is “ADR professional” - but the difficulty is that it is notable for what it does not say.


Law Society of SA


The use of ‘third party’ is appropriate. The third party is not necessarily an intervener in the traditional sense.

Law Institute of Victoria

The Law Institute suggests the “third party” or “intervener” should be described as an “ADR practitioner”, which will develop and enhance the concept of a specific professional function and capability.


NSW Law Society

Law Society members resolve disputes daily without recourse to a third party to facilitate the negotiation. This negotiation may occur in the shadow of a third party (eg the Court). When this fails a third party will usually decide the remaining issues in dispute. The Law Society has encouraged its members to embrace mediation and evaluation. In many instances there are legislative imperatives to other more formal ADR processes such as conciliation, concilio-arbitration and arbitration. These processes all envisage a new player in the dynamic. This person whether appointed by choice of the parties or by the Court, is a dispute resolver. The terms “third party” and “intervenor” are synonymous and historically persons with these titles add layers of complexity to legal disputes. The role of the third party will depend on the point on the continuum that (s)he enters the dispute. Generally they are expected to be impartial. There is some consensus that the term “neutral” may not be appropriate because everyone is biased in some way or has some favouritism on some issues. In terms of the outcome, the third party will value neutrality depending on where (s)he sits on the continuum. Vis-a-vis the parties to the dispute the third party are invariably expected to be impartial. The Law Society has defined impartiality as “freedom from favoritism or bias in word or action.” This person will control the process of dispute resolution. The term “dispute resolver” can apply equally to a judge or a mediator or any other third party that assists the disputants to resolve the dispute.


There is an alternate view that the third party should be neutral and impartial. On this view there is an overlap between the words “neutral” and “impartial” but they are virtually interchangeable. Whichever word or combination is used, the third party has to be aware of his/her own prejudices and biases and decline to mediate if that prejudice is likely to prevent them from acting in a neutral and impartial way. For the third party to continue to act (s)he must be aware of his/her bias or preference and must make a conscious decision to be neutral and impartial and not act on his/her personal prejudice, bias or preference.
In the criminal law context, neither ‘third party’ nor ‘intervenor’ are strictly accurate descriptions applicable in ‘restorative conferencing’. Generally the term ‘convenor’ is used to describe the neutral ‘facilitator’ who is also responsible for preparing the parties to the conference.
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