The Role of the Court in Alternative Dispute Resolution

Abstract

This paper discusses the role of the court in the context of the development and use of Alternative Dispute Resolution (“ADR”) in Australia and highlights the wide range of processes that are now used to resolve disputes at all levels of the Australian society. ADR use has greatly expanded in Australia in recent years and this has sometimes been accompanied by some concern that traditional litigation systems or justice will be adversely affected by the promotion of this “new order”. However, despite some voicing concerns, ADR has been enthusiastically adopted in a range of areas and a series of state, federal and judicial initiatives support ADR. ADR processes have not remained static and there are emergent forms of ADR that have been established as a result of a perceived need to vary ADR practice. Some of these emergent forms, such as collaborative practice, are directed at multidisciplinary approaches to conflict resolution that exists outside the court system. Other forms of ADR that focus on facilitative processes are directed at group decision-making and planning. Many of these developments have limited the role of the court in ADR, essentially as courts no longer play a lead or management role in respect of much of the ADR that takes place.