Using Alternative Dispute Resolution to Save Time

Abstract

Issues that are related to the impact of delay in respect of resolution of disputes have been partly responsible for the introduction of ADR in Australia and around the world. Often ADR processes are considered to save both time and cost, particularly when they prompt or support settlement. However, the extent to which ADR does save time is unclear, partly because there is a lack of data in respect of the civil justice system and delay in general. Recent initiatives to support pre-court filing ADR are often untracked and court and tribunal systems do not usually measure pre litigation activity nor delay from the date that the dispute arose. Rather, delay and timeliness tends only to be measured from the date any court or tribunal proceedings are commenced. Research has suggested that an important factor in shaping perceptions about whether the system or processes used to resolve a dispute are 'just' or 'fair' is linked to whether the time taken to resolve the dispute was 'too long'. There are also issues about the timing of ADR referral and the limited studies in respect of timing suggest that perceptions of all those involved in a dispute can vary in terms of whether the time spent was 'reasonable'. That is, lawyers, disputants, judges and ADR practitioners may all consider whether or not the time taken was appropriate in different ways and clearly some disputants and others may benefit from extending the time taken (from a tactical or financial perspective). The use of triage approaches at an earlier point in the life cycle of a dispute are intended to produce more timely outcomes and can assist in assessing what is 'reasonable' in the context of a particular dispute. These approaches are becoming more relevant as ADR is increasingly utilised outside the litigation system.