ATTORNEY-GENERAL

HON ROBERT McCLELLAND MP

MEDIA RELEASE

4 November 2009

Attorney General, Robert McClelland, today launched the National Alternative Dispute Resolution Advisory Council (NADRAC) Report into alternative dispute resolution in the civil justice system.

In June last year, the Attorney asked NADRAC to enquire into and identify strategies to remove barriers and provide incentives to promote the greater use of appropriate dispute resolution options as an alternative to formal litigation.

The report titled, The Resolve to Resolve: Embracing ADR to Improve Access to Justice in the Federal Jurisdiction, finds that alternative dispute resolution (ADR) remains significantly under utilized and that a key barrier is a lack of knowledge and understanding amongst the profession, litigants and the general public.

The report contains 39 recommendations aimed at improving the ADR system and encouraging its greater use, including imposing a legislative obligation on prospective litigants to seek to resolve disputes before they go to court;

The Government will closely examine the report’s recommendations, which complement and build on our commitment to improve access to justice.

A copy of the report is available at www.nadrac.gov.au or at www.ag.gov.au.

You may have caught the news a couple of months ago that the NSW government launched a discussion paper that proposing some reforms to how it managed the ADR system in that State. The discussion paper proposed amongst other things that lawyers be bound by statute to advise their clients about ADR and the establishment of an ADR directorate.  It said that the growth of the non-adversarial system, including ADR, was lacking strategic coordination and ADR services were being distributed on an “ad hoc” and piecemeal basis. It also said “There is currently no comprehensive and clear picture available of the full range of ADR suppliers.”

These proposals follow ADR reforms being considered in Victoria after a report by the Victorian Law Reform Commission was released in May 2008. The Commission recommended that more disputes be resolved before trial. Victoria is currently leading the way with such reforms and a much higher percentage of disputes are being submitted to ADR and often at a very early stage.

The NSW government, in its discussion paper, is encouraging collaborative law be applied to civil dispute cases and that a single Sydney International Arbitration Centre be established. It wants to enact some guiding principles for civil disputes and it is looking at enacting laws that will allow adverse cost orders to be made where these guiding principles are not adhered to by parties to a dispute.

What are your thoughts on this? We now have the National Mediator Accreditation System in place since 2009. What further reforms are needed?

Your comments and insights would be much appreciated.

Christopher Whitelaw