Tribunals and Alternative Dispute Resolution

1. Tribunals and Alternative Dispute Resolution Topic 11

2. Tribunals • Courts • Judicial review • Was the decision lawfully made • Tribunals • Merits review • Was the decision a good decision?

3. Merits review • Important check and balance on role of decision makers • Consider decision afresh • Example of Administrative Appeals Tribunal

4. Administrative Appeals Tribunal • Unique in the common law world • General tribunal for the review of administrative decisions • Over 90 members with the jurisdiction to review administrative decisions made under more than 400 Acts of Parliament • Appeals lie to the Federal Court

5. Drake v Minister for Immigrationand Ethnic Affairs(1979) 24 ALR 577 at 589 per Bowen CJ and Deane J: “The question for the determination of the Tribunal is not whether the decision which the decision maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.”

6. Federal Judicial Review • Administrative Decisions (Judicial Review) Act 1977 (Cth) • Federal Court • Appeals from AAT – but not merits review • s75(v) Constitution – High Court jurisdiction

7. NSW Tribunals Administrative Decisions Tribunal • Administrative Decisions Tribunal Act 1997 (NSW) s3 includes: • make decisions at first instance • Review decisions made by administrators • Ensure accessibility, efficiency, effectiveness and fairness • Proceedings to be informal and expeditious

8. Administrative Decisions Tribunal • General Division • Community Services Division • Revenue Division • Legal Services Division • Equal Opportunity Division • Retail Leases Division

9. Administrative Decisions Tribunal • Two jurisdictions: • Reviewable decisions • Original decisions – analogous to civil suits

10. Alternative Dispute Resolution

11. ADR • Litigation has been the traditional focus of dispute resolution, but often not the only appropriate form of dispute resolution • ‘Alternative’ forms of dispute resolution becoming increasingly important • Both Courts (s71) and ADR methods such as conciliation and arbitration (s51(xxxv)) recognised in Constitution

12. ADR same as Court? • ADR not just a different type of court • Court: exercises the judicial power of the State • Tribunal: exercises executive (and sometimes judicial) power of the State • ADR: may be voluntary/may be binding – depends on agreement between parties • ADR: often a private contractual arrangement

13. ADR • “Alternative” – can convey these dispute resolution methods are of secondary importance • Additional? • Litigation alternative to ‘traditional’ mortal combat? • “Dispute resolution” as a range of options (including litigation) – select most appropriate to circumstances and client

14. Development of ADR in Australia Three key events: • Establishment of the Family Law Court • Establishment of Community Justice Centres in NSW • Establishment of the Australian Commercial Disputes Centre

15. Family Law Court • Family Law Act 1975 (Cth) • designed to be informal and incorporate pre-trial processes such as counselling and conferences • Family Law Reform Act 1995 (Cth) • ADR designated “primary dispute resolution” • Funded community based services such as Relationships Australia and Centacare • Broad view of dispute and methods of resolution

16. Community Justice Centres - NSW • Community Justice Centres (NSW Pilot Project) Act 1980 (NSW) • pioneered use of mediation in public issue disputes, victim offender mediation (conferencing) and family mediation. • resolve disputes through mediation, free of charge to members of the public • Spurred development of Lawyers Engaged in ADR (LEADR)

17. Australian Commercial Disputes Centre • Company established with government assistance • Successful in fostering use of ADR techniques, especially mediation, in commercial disputes • Government response to ADR now largely seen in legislative ADR schemes

18. ADR - definitions • Accurate, comprehensive definitions can be difficult • National Alternative Dispute Resolution Advisory Council – NADRAC • “processes, other than judicial determination, in which an impartial person assists those in a dispute to resolve the issues between them.”

19. NADRAC definitions • Facilitative processes: an ADR practitioner assists the parties to a dispute to identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement about some issues or the whole dispute. E.g. mediation, facilitation and facilitated negotiation. • Advisory processes: an ADR practitioner considers and appraises the dispute and provides advice as to the facts of the dispute, the law, and in some cases, possible or desirable outcomes and how these may be achieved. E.g. expert appraisal, case appraisal, case presentation, mini-trial and early neutral evaluation.

20. NADRAC definitions • Determinative processes: ADR practitioner evaluates the dispute and makes a determination. E.g. arbitration, expert determination and private judging. • Combined or hybrid processes: ADR practitioner may play multiple roles. E.g. in conciliation and in conferencing, the ADR practitioner may facilitate discussions, as well as provide advice on the merits of the dispute. In hybrid processes, such as med-arb, the practitioner first uses one process (mediation) and then a different one (arbitration).

21. Why ADR? • Benefits for clients • Cost – usually cheaper • Time – usually faster • Relationships – can be preserved. Consider the effect of litigation on relationships. Court system always adversarial. • Benefits for courts • Pre-trial/case management processes reduce workload of court • Reduces costs and delays across the system

22. Why ADR? • Effective in achieving lasting settlement of disputes • Parties actively engaged • Avoids ‘winners’ and ‘losers’ • ALRC report: “70.6% of the mediation agreements with monetary settlement were reported to be paid in full, compared to 33.8% of the adjudications.”

23. Why ADR? • Promoted by government as best practice • Commonwealth Legal Services Directions 2005 • ‘model litigants’ - endeavour to avoid, prevent and limit the scope of litigation wherever possible. • Professional obligation? • Should be able to advise clients about all options and best options.

24. Federal approach to ADR Some ADR required by legislation prior to any claim in: • Federal Court (Federal Court of Australia Act 1976) • Family Court of Australia (Family Law Act 1975) • Federal Magistrates Court (Federal Magistrates Act 1999) • Human Rights and Equal Opportunity Commission (Human Rights and Equal Opportunity Commission Act 1986) • Australian Industrial Relations Commission (Workplace Relations Act 1996) • Administrative Appeals Tribunal (Administrative Appeals Tribunal Act 1975) • National Native Title Tribunal (Native Title Act 1993) • Australian Competition and Consumer Commission (Trade Practices Act 1974), and • Social Security Appeals Tribunal (Social Security Act 1991).

25. State approach to ADR • Similar approach at State level • e.g. Supreme Court Practice Note SC Gen 6 • “The Court’s power does not depend on the consent of the parties, or of any of the parties”

26. Types of ADR • Negotiation • Mediation • Neutral Evaluation • Conciliation • Expert Referral • Arbitration • Family Dispute Resolution • Ombudsmen • Youth Justice Conferencing • Circle Sentencing

27. Negotiation • Conflict of interests between parties • No established rules to resolve conflict • Parties are seeking agreement • May or may not involve third party • Mediation • Generally involves the use of a trained, neutral third party • Process – oriented: mediator facilitates • Substance – oriented: mediator offers recommendations

28. Neutral evaluation • Neutral evaluator seeks to identify and reduce the issues of fact and law which are in dispute • Offers opinion as to likely outcome of dispute • Similar to a mini-trial • Conciliation • Parties, with the assistance of neutral conciliator, identify issues and develop options and alternatives • Conciliator advises but does not determine

29. Expert referral • Usually established by legislation • Expert panels used by State courts and tribunals • Arbitration • Formal dispute resolution process governed by Commercial Arbitration Act 1984 (NSW) or equivalents • Binding determination • Also industrial arbitration

30. Family Dispute Resolution • Independent practitioner assists those separated or divorced, or considering separation or divorce to resolve some or all of disputes • Operates in Family Law context and designed to avoid Court altogether (where possible). • Now required prior to seeking any Family Court order relating to a child • Ombudsmen • Established in many government departments and some private industries

31. Youth Justice Conferencing • Example of ADR in criminal context • NSW scheme to divert young offenders from the courts by requiring them to meet the victim of their behaviour • Young Offenders Act 1997 (NSW) • Circle Sentencing • Current NSW trial • Designed to empower the Aboriginal community in the sentencing process • Punishment to be a community sanction