Adr terminology Responses to nadrac discussion Paper



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Question Eight - Is a classification system for ADR processes needed? If so, how should they be classified?

Yvonne Craig



Classification may imply hierarchical order, which should be avoided. Alphabetical listing in broad groups of process ie. non-judgemental, mandatory etc.

LEADR

The processes should be classified according to the role of the third party, ie facilitative, advisory, or (if determinative processes are included in ADR) decision-making (determinative).


Law Society of SA


No classification system is needed.

Law Institute of Victoria

The Law Institute believes that a classification system for ADR processes would be valuable to users. It should follow four broad categories:




  1. Facilitative (assisted / managed);




  1. Advisory;




  1. Evaluation / Settlement-oriented;




  1. Authoritative (involving a decision or judgment).

The status and nature of outcomes should form part of this classification system.

NSW Law Society

By adopting the approach of a continuum (see 2 and 5 above) the indicators for classification will relate to a mode of service delivery in terms of degree of formal coercion wielded by the dispute resolver. The concept takes into account all of the possible indicators for classification. The classification equates to seismology. The key indicator is intensity. Dispute resolvers can identify their own address on the scale by relative comparison to agreed indicators (e.g. direct negotiation is at position 1; NSW Law Society mediation model is at position 5, Appeal Court at 9,) This approach will allow for diversity of product on terms of the tools of the dispute resolver such as, level of formality, expertise and statutory constraints. Consumers would also be in a position to identify the DR product or range of products available for this dispute. It will leave the door open for development of new process models and allow for quality assurance to be adapted to those taking part in dispute resolution and for ongoing modification of the culture.


Question Nine - How should ADR terminology reflect the practice of combining ADR processes?

Yvonne Craig

By indicating that the parties ‘ownership’ of the processes enables them to discuss with service providers the principles and practicalities of desired combinations, essentially arguing with them which is the most appropriate, ethically, legally acceptable.


Law Society of SA


Development of terms is by usage and adaptation. The aim should be to use the broadest term in use internationally.

Law Institute of Victoria

The key requirement is transparency of process for the consumer. Both the provider and the consumer need to understand the process that is being contemplated.


NSW Law Society

Combined processes will have their place on the continuum and can be adapted to suit the needs of the parties and the dispute. Provided that the third party is trained, neutral and impartial and has explained the process (s)he will use, hybrid processes can be used. It is always wise for the third party to have the prior consent of all parties to deviate from the primary model if the third party thinks it will assist the parties to resolve their dispute.


Question Ten - To what extent should Australian use of ADR terms reflect international usage?

Yvonne Craig

See (1, 2 & 5)


LEADR

Given that Australian use of ADR terms is in a state of flux we should move towards a more universal and international usage rather than away from it. International usage should be used wherever possible unless we have a better usage, in which case we should maintain its use until it receives universal application.


Law Society of SA


Consistency between international usage and Australian usage is desirable as far as possible.

Law Institute of Victoria


The Law Institute suggests that we concentrate initially on improving the terminology issues within Australia. While we acknowledge that useful lessons may be learnt from overseas models and experiences, we should not be bound by an overseas practice if an alternative is more sensible for us in the Australian context.


NSW Law Society

Given the inconsistency in definition on a global scale, Australia cannot hope to achieve terms that are internationally accepted in every case. However by recognising that there is an internationally shared vision of optional or appropriate Dispute Resolution processes, and by encouraging self evaluation in terms of the degree of persuasion exerted by the dispute resolver, overseas practitioners (and Australian dispute resolvers) will have a reference point by which to decide how the services they offer and the skills which they employ compare with those utilised by other practitioners in Australia and vice versa. This approach could bridge the gap between theory and practice.


Australia should make efforts at the highest level to achieve international consensus on terminology as quickly as possible. Ultimately someone has to agree to change. It would be a sad reflection on the mediation profession if mediators could not agree on internationally uniform terminology in an increasingly globalised business environment. As a profession, dispute resolvers should be flexible and innovative to assist disputants to resolve their dispute, taking into account the diversity of human personality and the problems they present with.
On the other hand, a hierarchical list of definitions designed to reflect international usage, may prevent the learning of new ways by raising barriers of skills and credentials which will stifle creativity and prevent change.
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