Michael Talbot – Effective Dispute Resolution: A view from Australia

In a recent road show to New Delhi, Michael Talbot spoke at a joint conference presented by the Australian Disputes Centre, the Australian Centre for International Commercial Arbitration and the International Centre for Alternative Dispute Resolution when he discussed Australia’s ADR landscape; citing the efficient administration of justice via legal frameworks and professional mediator accreditation as central to the prompt and efficient means of resolving disputes.

In discussing the significance of effective dispute resolution at the Conference, and later to the students and faculty of the Rajiv Gandhi National University of Law, Mr Talbot considered the wider context of globalisation, protracted litigation and cultural differences as factors that may impact on effective dispute resolution.

Having been embedded in Australia’s legal and business culture for over 35 years, early developments of ADR can be traced to NSW Community Justice Centres formed in the 1980s. Michael Talbot credits the proliferation of Australian ADR in part to the transparent and nationally recognised framework for training and practice requirements; the National Mediator Accreditation System (NMAS) as overseen by the voluntary Recognised Mediator Accreditation Bodies (RMABS).

Mr Talbot highlighted the standards set forth by the NMAS including:

  • Minimum standards of training, professional education and ethical practice
  • Impartial role of mediators in addressing biases and conflicts of interest
  • ‘Blended’ processes on the provision of informed consent and appropriate expertise
  • Participant confidentiality and procedural fairness

Moreover, the integration of pre-litigation ADR into Australia’s domestic legal system via legislative provisions, contractual clauses, court compliance and judicial support were seem as further reinforcing the effectiveness and efficiency of ADR. The overriding principle for case management and interlocutory matters, set out in the Civil Procedure Act 2005 (NSW), requires that courts facilitate the just, quick and cheap resolution of the real issues in dispute, and contains specific referral powers in relation to mediation and arbitration. While certain Australian jurisdictions require ADR as a pre-requisite to court proceedings in cases involving family law, farm debts and retail leases, the implications of ADR during litigation is its potential for opening lines of communication, information exchange, narrowing of issues and ultimately the fast tracking of settlements and resolutions. Mr Talbot outlined the use of ADR in NSW Courts:

  • Supreme Court: All family provision cases are referred to court-provided mediation unless the court orders otherwise. Civil and commercial litigants are encouraged to consider mediation and it may otherwise be ordered by the court.
  • District Court: 90% of matters are referred to either mediation or a compulsory settlement conference prior to hearing.
  • Local Courts: Claims less than $100K require ADR in the initial phase of the case management process (after a defence is filed), matters less than $10K are referred to the NSW Community Justice Centres for free mediation, as are mandatory referrals relating to Apprehended Violence Orders.
  • NSW Civil and Administrative Tribunal (NCAT): An amalgamation of 22 different tribunals that deal with an array of legal issues including consumer disputes and tenancy issues, NCAT is a pioneer in all aspects of dispute resolution via the adoption of methods such as mediation, conciliation, neutral evaluation, case conferencing and online dispute resolution. The NCAT conclave process facilitates joint meetings for building disputes by providing specialist tribunal members with relevant expertise to clarify and resolve technical matters in dispute.
  • Land and Environmental Court: Adopts various methods of ADR including a hybrid form of conciliation and mediation.
  • Children’s Court: Applications filed in the Children’s Court are subject to a Dispute Resolution Conference conducted by a court registrar, who is also a Nationally Accredited Mediator, or externally via a panel of Legal Aid mediators.

In concluding his address, Mr Talbot suggested that prospective opportunities and challenges to ADR be approached with innovation and creativity, within both domestic and international spheres, to enhance the efficiency and effectiveness of dispute resolution in the administration of justice.

Mr Michael Talbot FAIM

Deputy Secretary (Courts & Tribunal Services) of the NSW Department of Attorney General and Justice and Chairman of the Australian Disputes Centre

2019-09-21T11:34:16+10:00

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