Alternative Dispute Resolution in Queensland

Alternative dispute resolution (ADR) is an umbrella term for a variety of means designed to assist people and organisations to settle a legal dispute without having to go to court. ADR includes mediation, conciliation, and arbitration and can be used in most types of disputes, including civil cases, family law disputes, and even some criminal cases. This article outlines ADR in Queensland.

Mediation

Mediation is one of the more informal means of alternative dispute resolution in Queensland. The parties involved meet to discuss their dispute and try to arrive at a compromise or some agreement to settle the issue with the help of a mediator, who is an independent person.

Parties to mediation are allowed to have their lawyers attend only if the mediator approves. They may also be able to bring in any experts who might help with the resolution of the dispute.

If the parties are able to come to an agreement, the mediator documents it and gives a copy to each party, and to the court if it is a court matter. It is up to the parties to determine what is included in any agreement reached.

If the parties fail to reach an agreement, whatever has been said during mediation can’t be used in evidence in any later court proceedings without the person’s consent.

The court can enforce a mediated agreement, as long as it has been documented and signed by all parties including the mediator, if you or the other party applies for an order. If the matter goes to trial, the successful party may be able to obtain an order for the costs associated with the mediation process.

Mediation is usually voluntary; however, many courts and tribunals require parties to utilise dispute resolution procedures in an effort to settle the matter before it can be heard by the court.

Restorative justice conferencing

Restorative justice conferencing is a means of alternative dispute resolution in Queensland that is used in criminal matters. It is a facilitated meeting that takes place between a person who has been affected by an offence (usually the victim/s) and the person responsible for it (the defendant/s). This gives the victims the opportunity to tell their story and describe how the offending affected them. It also gives the defendant the opportunity to take responsibility for their actions and apologise directly to the victims.

Restorative justice conferencing is generally used in relation to Magistrates Court offences, like less serious stealing, assault or wilful damage offences, but may also be used in cases where more serious offences have been committed. Whether or not justice mediation can be undertaken depends on the circumstances.

A criminal matter can be referred to restorative justice conferencing at any stage in the court proceedings. Parties can be referred by either the police or a court. Participation is voluntary and the meeting is generally held at the local courthouse or Dispute Resolution Centre. It usually takes about two hours.

Before it begins, mediation staff will talk with the victim as well as the defendant and anybody who is there to support them. The complainant doesn’t have to attend the mediation in person. They can nominate someone else to attend on their behalf, or they may instead write or record a victim statement explaining how they have been harmed, and the defendant can talk about what led them to commit the offence. They then discuss how the defendant might attempt to repair the harm they caused.

This may mean:

returning stolen property
paying compensation
repairing damage
apologising
agreeing to attend counselling or courses.

After the mediation, if the parties have agreed on what the defendant should do to try to rectify the situation, the mediator helps the parties to commit it to writing. A copy is provided to the referrer who then decides whether the court process should continue.

Conciliation

If your dispute involves workplace discrimination or the provision of services, conciliation may be the best form of alternative dispute resolution in Queensland by which you might resolve the dispute.

Conciliation assists the parties in identifying the issues, and to discuss possible terms of settlement. The parties receive expert advice from the conciliator, but they cannot decide on the terms of the agreement for them.

Parties may be required to try conciliation before a matter will be heard in some courts and tribunals.

Collaborative law

A relatively new form of alternative dispute resolution in Queensland, collaborative law requires both parties (and their lawyers) to work together to try to reach a settlement. The parties must try to come to the discussion calmly, having set aside the emotion of the argument, and ready to participate fully in a negotiation process.

A participation agreement is signed at the beginning of the process whereby the parties agree to act in good faith, to attend all meetings as required, and to disclose all relevant information. A breach of the agreement may mean that the lawyers will withdraw from the process and will not be able to continue to represent you in any later proceedings.

Although collaborative law can be used for commercial areas, it is most often used in family law matters.

Arbitration

Arbitration is a more formal type of alternative dispute resolution in Queensland; however, it occurs outside of the courts. An arbitrator’s decision is legally binding on the parties. The parties to the dispute choose an independent qualified expert with the necessary legal and, if necessary, technical knowledge (known as an arbitrator) who acts as the judge.

Arbitration is often used in large commercial disputes, building and construction contracts, and employment matters.

Alternative Dispute Resolution in Queensland Courts and Tribunals

Many of Queensland’s courts and tribunals use alternative dispute resolution as a matter of course.

The Building and Construction Industry Payments Act 2004 (BCIPA) sets out a process by which parties involved in the building and construction industry can try to sort out payment disputes. The process is overseen by the Queensland Building and Construction Commission.
Mediation is a primary feature of the QCAT dispute resolution process. The Alternative Dispute Resolution division co-ordinates the mediation services for less serious civil disputes using their own mediators, or those employed by the Department of Justice and Attorney-General in their Dispute Resolution Branch.
In the Federal Circuit and Family Court (FCFCA), mediation is compulsory in cases concerning the care and custody of children. A matter can only be heard in the FCFCA if parties have genuinely tried to resolve the dispute. You don’t need a solicitor for mediation but you should get legal advice before going to a mediation session as you need to know what the law says about parental rights and responsibilities and the division of property and assets so you don’t lose out on your entitlements.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.

Author

Michelle Makela

Michelle Makela is a Legal Practice Director at Go To Court Lawyers. She holds a Juris Doctor, a Bachelor of Science (Psychology) and a Master of Criminology. She was admitted to practice in 2006. Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.

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