• Members response:

One thing that I don’t think that anyone has mentioned yet, is that the arbitration process in international arbitration is completely confidential. That even extends to the award not being made public unless it needs to be enforced or is subject to appeal. I think this clearly makes it an alternative process to court trials and decisions and is perhaps one of the main reasons why it has been embraced by parties to commercial disputes.

I think the point that emerges from this discussion is that the term “arbitration” itself is not homogenous.  It comes in many shapes and forms and some of them may come within the purview of ADR and others may not.  The point that David Baldry has made is a good one, that is, that arbitration, especially international arbitration, is a confidential process and even the award is confidential in some circumstances.  In some jurisdictions, such as applies in NSW under section 38 of the Civil Procedure Act, 2005 (NSW), there is compulsory court-annexed arbitration provision which is anything but confidential or voluntary and pursuant to the Act and the Rules of Court, the Court may refer any matter out to arbitration for hearing by a court-appointed arbitrator.  The award, which becomes a judgment of the court after 28 days, is as public as any other judgment and there is very little to distinguish that arbitration process from a hearing in open court.  Nevertheless, the court system refers to it as “an ADR process” which I think is inaccurate in the circumstances.  In Wes Trac Pty Ltd v East Coast OTR Tyres Pty Ltd [2008] NSWSC 894 at [38] Barret J pondered why such arbitrations are diminishing in popularity and concluded that one reason is that the arbitral award “…can be displaced virtually at the whim of a party and replaced by a judicial process and a judicial determination.”  Whilst His Honour was there dealing with Supreme Court arbitrations, my own anecdotal experience suggests that, in the Local Court at least where magistrates deal with a busy criminal list every day, the court-annexed arbitration system for civil cases is as popular as ever.  I have delivered more than a hundred arbitral awards, only one of which was disturbed on a rehearing.  This process is quite different from arbitrations conducted under the Commercial Arbitration acts and from International Arbitrations and it may be that we need to acknowledge that some arbitrations may come under the ADR banner and some may not.

1. (of one or more things) available as another possibility or choice.

2.  relating to activities that depart from or challenge traditional norms.

Arbitration certainly meets the first part of the definition of ‘alternative’ in that it is another way of having your matter determined by someone authorised to impose a solution. Judicial determination and arbitration are part of the same genre albeit with differing procedures.

Arbitration does not meet the second part of the definition.

Arbitration has been an integral part of the traditional norms of our Western judicial system since the Common-Law Procedure Act (UK) 1854. It has been prominent in Australian jurisdictions since the late 19^th century and throughout the 20^th century. It, like judicial determination, has become the traditional norm.

It is the introduction of mediation in the latter part of the 20^th century that has seen a fundamental departure from this traditional norm. The term ADR arose directly out of this development.

The process of imposing a result on the parties being expressly excluded in the mediation approach has been the fundamental departure.

Therefore, arbitration can call itself ADR if it likes but mediation (using the broad Singapore Convention definition) is the more accurate representation of what has become known as ADR.

Thanks, M and G for your responses to this question.  I enjoyed reading your thoughts.

That is an interesting question that has certainly occupied the minds of dispute resolution theorists over time.  It would appear from the evidence that the official court view is that arbitration is encompassed as a form of ADR.  Paragraph 8 of the Local Court of NSW Practice Note Civ. 1 speaks of referral to compulsory arbitration under the heading of “Alternative Dispute Resolution.”  Other NSW Court practice notes speak of “referral to arbitration or some other form of ADR.”  Outside the court system arbitrations, although comprising a determinative rules-based process, nevertheless involve an element of disputant choice.  For example, in many cases, the parties either agree to arbitrate their dispute or they have agreed pursuant to some earlier contract that they will arbitrate any dispute.  They agree on the selection and appointment of an arbitrator and they usually agree on the time and place of the arbitration.  Few of these options are available in a strictly litigated environment.  Notwithstanding all of this, my own view is that arbitration is not an alternative dispute resolution.  It is litigating in another room.  This is because, ultimately, it is a rules-based determination of a dispute by a third party who considers the dispute on the basis of evidence and makes a binding determination.   The parties themselves play no part in the decision-making process except by way of evidence in which they attempt to persuade the decision-maker of their case.  The decision-maker merely makes a determination on the evidence and provides a reason for the determination.  In my view that is not ADR.  My own arbitration practice comprises receiving cases from the court in respect of which I am expected to make procedural directions, hear the case, provide reasons for the award and return the file to the court.  There is no voluntary component of the process at all (except perhaps to have the matter reheard before the court if they are dissatisfied with my decision).

Depends on what you mean by “Alternative” in ADR.

Traditionally, “alternative” has meant an alternative to the courts. In that sense, arbitration is ADR because it’s not a court resolving the dispute.

However, the author seems to equate “alternative” with “facilitative” and that “determinative” forms of ADR (arbitration, adjudication, expert determination etc) are not “alternative” because a third party imposes a binding (final or interim) decision. This is a view, but it’s not my view.

Or, perhaps because the conduct of many arbitrations is similar to the conduct of a court case, the author sees them as the “same” and therefore not “alternative” meaning “different”. This is a definition that alternative can bear but it’s not how it’s used in the phrase “Alternative Dispute Resolution”.

D, you took the words right off my keyboard. I agree 100% with your response. T.

I feel Arbitration falls within ADR. I view thee, Arbitrator, as one of the disputing parties, albeit having no interest in the decision other than its fairness. The arbitrator is open to being pursued by the parties, often independently of ‘black letter law’ technicalities or constraints. The parties, therefore, are the facilitators and the Arbitrator one who makes a decision they (the mediator) can live with, without that decision’s exceeding the mediator’s authority. A judge on the other hand although having a somewhat similar role has to consider legislation, precedents and the possibility of appeals.

As Dale said, it all depends on the definition of ADR. Traditionally, this was Alternative (to litigation in court) Dispute Resolution. Then, some suggested that it should be ‘Amicable Dispute Resolution’, while others suggested ‘Appropriate Dispute Resolution. Each term implied that everything and anything is better than litigating in the courts where the parties have no control over the process and no say in the outcome. This misconception only adds to an already divided perception of what has become a system of various processes all serving the same scope of managing disputes. Today the range of various facilitative and determinative processes recognised and supported by legislation and the courts are equally part of this system that in most cases allows parties to manage their dispute in a way that best serves that dispute. Courts are an integral part of this system and their processes now incorporate many steps that not too long ago were only available in the ‘Alternative’ processes. It may be time to move on with the terminology to better reflect the changing reality of dispute management overall.

“time to move on with the terminology”? I disagree. I wouldn’t want to start behaving like a government department, wasting resources (member time, RI funds) on changing names. I think that’s missing the point. A good definition is always helpful.

Tess, I was not suggesting for RI to invest resources in changing names for the sake of changing names. It may happen organically in practice if updated definitions no longer match the terminology used. All I implied was to allow for the beautiful flexibility that is characteristic of the field to change terms too to best reflect reality. But you are right; a good definition is important and may solve inconsistencies just as well.

ADR and the word ‘alternative’ can mean whatever you want it to mean.

For the legal profession ADR often means an Alarming Drop in Revenue and for the judiciary, an Alarming Drop in Relevance.

ADR /Mediation has certainly shaken up the Centuries-old litigious dispute resolution model. It is now a mere shadow of its former self in terms of participation.

We now have judges in the Federal Circuit Court and in state Supreme Court’s (SA) sitting as mediators in their own courts although referring un-resolved matters back to other members of the bench to make a determination. Are the courts now turning ADR too ??

It’s interesting that arbitrators want to market themselves or be seen to align with the broader ADR community rather than being seen as a legitimate alternative to litigation.

It seems everyone is now ADR.

The Singapore Convention created a line in the sand, in my view. On one side is mediation and on the other side arbitration/judicial determination. Both sides should be comfortable in their own skin.

Two sitting South Australian Supreme Court Judges/Masters conduct in-house mediation particularly in relation to contested estates matters and other noncriminal matters.

In the Canadian province of Québec, judges have been performing judicial mediation for decades. Research has disclosed that litigants have been delaying settlement until they are able to access a free judicial mediator. It has killed the private mediation profession and has not resulted in lowering the cost of justice as compared to jurisdictions where private mediation has flourished.

Parties have somehow got it into their head that a judge mediator must be better than a non-judge mediator. Maybe just because it’s free!

I have had some issues logging on and been busy with both facilitative and determinative DR. D has said quite well what I would have. I also agree with B and D.

Whether alternative, amicable or appropriate, it is an alternative to litigation. Although litigation may be appropriate in some cases.

I used the acronym ‘DR’ instead of ‘ADR’ above, but it was tongue-in-cheek.

Many firms now use DR instead of litigation for their dispute resolution services. Some who believe that ADR should be only amicable or facilitative would say ADR and Arbitration to encompass both, as has done the ICC. This is really limited to mediation and arbitration and possibly dispute boards and does not cover the whole gamut means of resolving disputes that are alternatives to litigation. In teaching or advising clients, I too tend to explain the spectrum. This is particularly important at the contract drafting stage when deciding which form or forms to include.

21.  RE: Is Arbitration within the remit of ADR?

Hi. I have always thought of the word “alternative” in Alternative Dispute Resolution as meaning an alternative to litigation before a court, in Australia a Chapter lll court in the Australian Constitution. So I have thought of the Fair Work Commission (and its predecessor institutions) as an ADR institution. All arbitration is not the same. There is mandatory arbitration, private arbitration, Med-Arb, non-binding recommendations etc. Aren’t they all at the upper end of a continuum from non- determinative to determinative processes outside the court system, with facilitative mediation at the lower end of the continuum?