This paper will examine when it is appropriate to attempt alternative dispute resolution (ADR) processes for disputes and conversely when it is fitting for matters to be decided in a courtroom with black-robed judges and well dressed lawyers. Complementing the correct ‘intervention [courtroom, facilitative ADR or another form of ADR] at the right time, price and place with the right disputants’ is not necessarily an easy task (Wade 2010, p. 13) and the line separating alternative dispute resolution processes and judicial intervention can be blurred especially as judicial officers conduct, refer or mandate parties to participate in ADR (Sourdin, 2009, p. 190). Proof that fine panelled courtrooms may not be the answer to dispute settlement is the move towards the ‘mandatory’ use of alternative methods prior to hearings (Ardagh and Cumes, 2007, p. 206).
Do most people with problems want pain relief quickly and inexpensively?
Yes most people in pain want relief quickly and inexpensively but they often want other things too. They want to be heard, they want to heal the hurt and they want a ‘satisfactory [and]… enduring’ outcome (Moore, 2004, p. 2). They also want to change from having ‘a destructive interaction to a constructive one’ (Ardagh, 1999, as cited by Spencer and Hardy, 2009, p. 165).
There are differing views about the suitability of facilitative ADR approaches for various types of conflict. Some believe that this type of ADR is more appropriate for addressing ‘interest disputes than rights disputes’ (Boulle & Nesic, 2001 as cited by Van Gramberg, 2006, p. 121). Van Gramberg states that ‘personal grievances’ may be adequately resolved by facilitative processes but where a law or legal right has been breached then an ADR response is generally not suited to this type of dispute (2006 p. 121). Not all agree with Van Gramberg’s view and restorative justice advocates believe that the criminal victim offender mediation (VOM) and circle sentencing models (for example) can satisfy a victim’s need for justice (Queensland Department of Justice and Attorney-General, 1995, p. 2).
Whilst traditional court process are a vital part of our ‘legal culture’ there is an emerging trend of attempting to negotiate and resolve matters without court intervention and this ‘early problem solving just “makes more sense”’ (Scott, 2008 as cited by Spencer and Hardy, 2009, p. 689) as it allows parties to have greater influence over the outcomes (Zehr, 1985, p. 4). In addition to being usually cheaper and quicker, other ‘benefits’ of mediation include creating a more sustainable outcome as parties in conflict are in charge of the process rather than having it imposed by another. Mediation creates the scope for relationships to be repaired if parties are willing to listen to and acknowledge the other (Street, 2003).
The timeliness that is usually associated with mediation and other ADR processes can be an important contributor to...