Alternative Dispute Resolution for Australian Legal System

Question: Discuss about theAlternative Dispute Resolution for Australian Legal System. Answer: It is evident that under the Australian legal system, most of the cases involves civil disputes are resolved by the method of alternative dispute resolution. In this regard, it is worth noting that various other disputes were resolved by involving the process of judicial decision and litigation. However, various proposals were made for the purpose of improving the methods of alternative dispute resolution. In this regard, for the purpose of improving methods of alternative dispute resolution, various government policies were implemented at both state and federal levels. Therefore, alternative dispute resolution has been defined as the process of dispute resolution involving two or more parties which involves the elimination of lengthy court proceedings (Bachar and Hensler 2017). The process of alternative dispute resolution has been applied for the purpose of promoting early settlement in disputes by reducing the expensive costs involved in litigation. The paper is commissioned to ex amine the advantages and disadvantages of alternative dispute resolution and the perspective of Justice Michael Kirby on it. Alternative Dispute Resolution involves various methods which can be emphasized as- arbitration, mediation, conciliation and negotiation. From the very beginning, these methods of dispute resolution have proved to be beneficial in solving disputes under the Rules of Civil Procedures (Curran, Vernon and Barnett 2017). However, it is generally expected on the part of the parties to involve themselves in proceedings involving arbitration or other forms of alternative dispute resolution for the purpose of avoiding court proceedings. In this regard, the Courts are at the authority to apply the methods of alternative dispute resolution whenever necessary. In this context, the advantages of alternative disputes resolution can be taken into consideration. The process involved with alternative dispute resolution is much cheaper as compared to court proceedings, which involves expensive court fees and complex procedures (Delgado 2017). Alternative dispute resolution is much quicker and flexibl e. The process of negotiation which is associated with alternative dispute resolution is much quicker than the other options available as the parties involved in such process solve their disputes by negotiating certain terms and conditions. It is worth noting that the process of alternative dispute resolution enforces full control over the parties to dispute within a considerable period. This is because, once the dispute is referred to the Courts on appeal, then there is no time limit regarding the fact that when the disputes are going to end. From the very beginning, the process of alternative dispute resolution is associated with the fact which involves providing appropriate solution to the parties in dispute. However, the process associated with the alternative dispute resolution is private in nature which has proved to be effective in dealing with matters involving commercial regulations. The most important advantage of using arbitration or mediation over court proceedings is th at, in case of court proceedings, the Judge is an expert in legal area (Duffy and Field 2014). However, he may not have adequate knowledge regarding matters involving building or disputes regarding civil engineering. Therefore, he relies upon the facts presented to him. The process of arbitration involves expert arbitrators who possesses sufficient knowledge regarding the area of expertise and therefore do not rely upon expert evidence. As a result of it, the proceedings involved in alternative dispute resolution becomes much cheaper and less time consuming. It is noteworthy to mention here that in spite of various advantages, a number of disadvantages are involved with alternative dispute resolution. It is evident that the processes involved in alternative dispute resolution are dependent upon the capacity of the disputing parties to compromise. In most of the cases, it can be observed that the parties usually settle their matter for a considerably less amount and even in some cases; they do not want to compromise at all. It is worth noting that though the process involved in alternative dispute resolution less expensive and less time consuming; in most of the cases the fact is not the same. The process of negotiation can often bring the parties to dispute in such proceedings which are expensive and at the same time lengthy and therefore there is no certainty regarding the resolution of the case. It is worthwhile to mention here that the procedures involved with formal arbitration hearings involves complex and expensive in nature. This due to the fact that for the purpose of efficient dispute resolution, trained and expert professionals are required which makes the process expensive. It is evident that the process involved with methods of alternative dispute resolution is confidential. However, this proved to be a greatest disadvantage in case if one of the party to the dispute wants to make a clear reference in relation to the proceedings involved and their consequences. One of the main disadvantages of alternative disputes resolution is immediacy on the part of the parties. The methods of alternative disputes resolution has been considered as unsuitable in case where one of the party to the dispute wants to put an end to the matter. It is noteworthy to mention here that the proceedings of alternative dispute resolution involve time limits. In some cases it may be beneficial for the parties however; most of the time the matter remains unresolved due to time limitation. The perspective of Justice Michael Kirby can be emphasized as he did not have positive views on the process of alternative dispute resolution. Justice Kirby were of the view that the methods of alternative disputes resolution has long term future in Australia however; for the purpose of solving matters related to commercial disputes, the process of administrative dispute resolution did not contribute much. Therefore, in this regard, Justice Kirby intended to highlight various issue associated with alternative disputes resolution. The first issue indentified by him was the vanishing trial. In this context, Justice Kirby intended to highlight the fact that not every dispute can be resolved through the process of alternative dispute resolution. This is due to the reason that the courts will have the authority to decide matters involving both civil and commercial disputes. Therefore, Justice Kirby was of the opinion that for the purpose of preserving and improving the authorization of th e courts in deciding matters, disputes of civil nature are required to solve in public (Kirby 2016). This is due to the reason that if dispute resolution is conducted in public forum, then it shall educate the public to great extent as public court plays significant role in educating the community as a whole. Justice Kirby opined that some disputes involves serious consequences which cannot be left alone to the parties to decide with the help of alternative dispute resolution. The application of court order and the law applied by the judicial rulers plays vital role in this regard. According to his point of view the most important issue associated with alternative dispute resolution is cost cutting. From the very beginning, it has been argued that the process of alternative dispute resolution promotes cost savings. However, in recent era, the policy of the government is to involve cost cutting methods for the purpose of maintaining court institutions and legal aid services. The vital issue associated with alternative dispute resolution is variable competence. In this regard, Justice Kirby was of the opinion that, when a dispute has been put forward before a judicial officer then it is expected that the matter shall be resolved according to his capacity and experiences of the past. However, in case of alternative dispute resolution, there can be fear in the minds of the parties regarding retaliation and personal gain which from the very beginning was never an issue for the judges. It has been efficiently argued that alternative dispute resolution plays important role in ultimate decision making. However, in case of court procedures, the judges are at the authority and resolve the case no matter how lengthy it is with the application of appropriate law. In modern era, in case of procedures involving alternative dispute resolution, the ultimate motive is to achieve market power. It is known to all that the court proceedings in Australia follow the structure of adversarial system. Therefore, it has been opined by Justice Kirby that for alternative dispute resolution to operate efficiently according to the existing social environment as the legal professionals are mostly influenced by traditional methods of adversarial justice. It has been stated that the purpose of alternative dispute resolution is to promote confidentiality and public interest however; in certain cases it can give rise to conflict of interests. It is worthwhile to refer here that in some cases, the matter in dispute has not been resolved as a result of poor performance on the part of the arbitrators. According to Justice Kirby, that it is essential to promote the methods of alternative disputes resolution however; it is necessary to improve the condition of court proceedings so that in future there remains no conflict between process of alternative dispute resolution and methods of judicial decision making. References: Bachar, G.J. and Hensler, D.R., 2017. Does Alternative Dispute Resolution Facilitate Prejudice and Bias: We Still Don't Know.SMUL Rev.,70, p.817. Curran, L., Vernon, A. and Barnett, P.T., 2017. Reflecting on Community Development Practices: Improving Access to Justice by Working with Communities to Effect Change.Flinders LJ,19, p.37. Delgado, R., 2017. The Unbearable Lightness of Alternative Dispute Resolution: Critical Thoughts on Fairness and Formality.SMUL Rev.,70, p.611. Duffy, J. and Field, R., 2014. Why ADR must be a mandatory subject in the law degree: A cheat sheet for the willing and a primer for the non-believer.Australasian Dispute Resolution Journal,25(1), pp.9-19. Kirby, M., 2016. Unmet needs for legal services in Australia: Ten commandments for Australian Law Schools.Law Context: A Socio-Legal J.,34, p.115.