About Alternative Dispute Resolution

Alternative dispute resolution

Alternative Dispute Resolution (ADR) is a way of resolving disputes out of court. ADR usually involves negotiation between people in dispute, with or without the help of a neutral third person. People can therefore use ADR as a way of solving problems themselves.

ADR includes direct unassisted negotiation between people, lawyer to lawyer negotiation, mediation, conciliation, expert appraisal, expert determination and arbitration. A common feature of these processes is that the people in dispute have control over the process and the outcome. That is, a decision is not imposed on them unless they agree in advance to be bound by the determination of a third party.

ADR encourages those in dispute to work out their interests and needs and explore creative ways of finding solutions which meet those needs. Even where people have different needs and interests it is sometimes possible to satisfy them all without having to compromise.

In Short: Mediation can be thought of as a process of facilitated decision-making or facilitated negotiation. It can initially be depicted as a system where the mediator facilitates the process and the parties identify the content, options and possible resolutions. While simplistic in approach, this provides a strong foundation for a process that can assist the parties to resolve issues and in some cases contribute to maintaining necessary relationships such as parents, work colleagues or business partners.

The Key Features of Mediation

Many authors on mediation would agree that it has at least the following as the core features of mediation:

• A process or a method ( structured by clear steps);
• the presence of an independent third-party, (the mediator) who is generally impartial;
• discussion, option generation, negotiation;
• identifying possible resolutions;
• possibly private sessions between respective parties and the mediator;
• Identification of interests and issues in dispute with a view to reaching an agreement on a way forward that the parties can live with and adhere to.

The importance of the structure underpinning the mediation process is essential to understand. The structure or stages give the mediation the backbone to direct the discussion that allows the parties to be guided by an independent professional mediator to reach self determined resolutions.

History

Mediation as a process has been practiced in Australia for approximately thirty years. The process and skills were utilised by various professionals in dealing with a range of disputes. Over the years both the practice of mediation and the theory and academic discussion around evolved. Even more importantly to the creation of the Standards was the increased use of mediation as a dispute resolution process by parties. As people understood what mediation was, there was also increased recognition that mediation needed standards and governance. The discussions around this started in the late 1990s and forums were held around Australia seeking input from all those involved in mediation either as a practitioner, academic or policy maker.

In 2008, the NMAS came into existence, the Federal Government of the day advised that the standards had to be governed by a self funded structure and thus the Mediator Standards Board (MSB) was established to oversee the governance. The MSB in the second decade of the Standards is now looking to the future and asking the question has mediation become a ‘profession’?