Understanding the Use of Practitioner Discretion in Screening ADR Services for Suitability: Results of a Pilot Study

Abstract

Processes categorised under the banner of “ADR”, particularly mediation and conciliation, are increasingly relied upon by parties in dispute, both inside and outside of the formal justice system. Given that an ADR process may not always be appropriate for a given dispute, legislation often affords ADR practitioners discretion as to whether to offer (or continue offering) an ADR process. However, there is limited contemporary empirical evidence exploring how practitioners are making such decisions in practice. To build on existing empirical research, I conducted a pilot study of ADR practitioners in the form of a survey (n = 12) in the lead up to and during the National Mediation Conference 2021. The pilot study had several limitations, resulting on a majority of respondents (n=10) being Family Dispute Resolution Practitioners (‘FDRPs’). As such, the results of the pilot study have been limited to a discussion in the context of family law only. The pilot study asked practitioners a series of multiple-choice questions, with the opportunity to provide free-text responses, and asked the practitioners demographic and characteristic questions, before asking practitioners to identify factors which influence when and how ADR is offered or ceased to be offered to parties in a dispute. The results of the pilot study supports existing evidence that FDRPs can have very different approaches to how they use their discretion to offer dispute resolution, in the context of their requirements to assess suitability for dispute resolution under the Family Law Act 1975 (Cth) and associated regulations. I discuss the possible impacts of this potential inconsistency in practitioner discretion on parties and the legal system more generally and make suggestions for further research.