The Commonwealth Constitution that was enforced in Australia in 1901 entailed conciliation and arbitration as both preventive and settlement methods of industrial disputes. The term ‘alternative dispute resolution’ refers to different forms of dispute resolution mechanisms that are used as an alternative to the court proceedings. The thesis statement of this assignment is to establish the significance and effectiveness of the ADR process in resolving conflicts or disputes in comparison of the court processes. This essay shall discuss about various Alternate Dispute Resolution [ADR] mechanisms that are used to resolve conflicts in the criminal family or workplace context. It shall also entail reasons for considering ADR as the most appropriate means of resolving such conflicts.
It is essential for a conflict resolution practitioner whether he or she is a lawyer, conciliator, mediator, arbitrator or other conflict resolution practitioner to comprehend the conflict dynamic as only then they would be able to assist people to resolve or mange their conflict constructively. The term conflict may be defined as a form of interacting where a person finds himself or herself under some kind of threat that is perceived to affect the collective or personal goals of such person. In Australia, people usually seek assistance from third party instead of courts to resolve their conflicts.
The term alternate dispute resolution refer to every facility to settle negotiation where the disputants are encouraged to engage in direct negotiation with each other before resorting to any other legal process. It also includes other mini-trials or arbitration system that is similar to a courtroom process. The various arbitration dispute mechanisms include negotiation, prevention, mediation, conciliation, ombudsman, arbitration, neutral evaluation, courts and tribunals (litigation).
These various forms of ADR processes have been designed to deal with community development issues, manage community tensions. It is important to differentiate between non-binding and binding forms of ADR. Negotiation, conciliation and mediation resolution mechanisms are considered non-binding programs and is dependent on the readiness of the disputants to reach a deliberate agreement. Binding ADR processes include a third party decision that is binding upon the disputants even if they do not agree with such decision, similar to a judicial decision whereas a non-binding arbitration includes a decision that may not be binding upon the disputants. There is a distinction between voluntary and mandatory processes in the context of dispute resolution mechanisms. On one hand, some judicial systems require litigants to mediate, conciliate, negotiate or arbitrate before resorting to court proceedings. On the other hand, in voluntary processes, resolving disputes through ADR processes depends on the will and consent of the disputants.
The use of non-traditional dispute resolution processes have been widely accepted in several dispute contexts. Similar processes have been applied in the context of criminal justice forming a part of overall criminal justice reforms. Across international and Australian jurisdictions, a variety of alternate methods has been developed to deal with the criminal offenders. Some of the alternate methods include family group conferencing, victim-offender mediation and circle sentencing. These programs have been applied in the Australian jurisdictions and conferencing particularly has become a commonly used method to deal with criminal offenders in Australian the jurisdictions.
The application of the ADR processes in the criminal context has emerged into the western countries as a completely new phenomenon. The growing interest in the application of ADR process to the criminal justice system emerged from the discontentment with the conservative adversarial dispute resolution methods. Traditional theories of criminal justice perceive criminal offending as a significant matter between the state and the offender. In the context of criminal justice system, the ADR processes may take place at different stages of criminal process. it can be in the form of a diversion from the court proceedings or they can be applied as a procedure equivalent to court procedures.
The application of ADR mechanisms is often considered as a better means to resolve conflict because it seeks to avoid ‘blaming’ and emphasizes on compromise and conflict. The ADR processes like victim-offender and conferencing seeks to obtain the best outcome for all the parties in the form of procedural flexibility, interest accommodation, relationship preservation, contextualization and active participation. The application of conferencing as ADR mechanism to deal with the criminal offender is equally beneficial as the application of informal methods of justice. The ADR specifically aim at attaching the ‘stigma’ to the criminal act instead of the offender accused of the criminal act with the objective to achieve the acceptance of accountability.
The application of ADR processes within the criminal justice system is often related to restorative justice movement that aims at shifting the emphasis from the notion of violation of state and punishment towards reparation of the offender and makes him incur a sense of responsibility towards the victim and the society as well. The propagation of different ‘alternate’ criminal justice processes have emerged due to the implementation of reforms like cost-effectiveness, case management, efficiency and the desire to develop a more culturally flexible and appropriate system to deal with the offenders, particularly, juvenile and indigenous offenders.
Traditional criminal justice sanctions shame offenders without providing them with any form of reconciliation, thereby, secluding the offender from the community, which strengthens the criminal behavior. However, that shame may be used in a constructive manner within a family and community context that offers such offenders with reconciliation opportunities. Conferencing as and ADR process enables offenders to enter into positive conversation with the victim as well as the community members regarding their behavior assisting them to restore self-respect and self-worth, taking a step closer to re-integration within the community.
However, it is challenging to strike a balance between the victims and the offenders while adopting ADR process of Conferencing. While the attempt to maintain a balance between the rights of the victim and the offender is the motivation for implementing ADR processes in the criminal justice system, it must also be comprehended that inequalities on large scale cannot be resolved immediately by adopting conferencing. Nevertheless, though conferencing serve as a normative and educative function in the end but it is mandatory to strike a balance between the rights of the disputants to achieve the desired balance.
There has been a rise in the use of family dispute resolutions to resolve disputes related to family violence. The Commissions consider the use of ADR processes in family violence, child protection matters and family law. The Commissions assess the family law framework for FDR after considering risk assessment and screening assessment practices, collaboration and cooperation between Family Dispute Resolution (FDR) lawyers and practitioners as well as it examines the development in the culturally responsiveness of the FDR.
It has been observed that the distinction between child protection issues, family violence and family laws do not always demonstrate facts that the families experience through family violence due to which the issues often overlap with each other. Consequently, the Commissioner considers the effectiveness of ADR processes to provide effective and seamless resolution for the issues arising from family violence. The Australian government has been strongly in favor of using the ADR mechanisms to resolve child protection disputes and issues related to family law.
The application of the FDR mechanisms provides a resolution procedure that is both flexible and accessible which fulfills the diverse interests, need and concerns of the disputants. Where parties to the dispute are victims or are subjected to risk of family violence, the implementation of FDR processes significantly contribute to the possibility of attaining effective and sustainable results. The reforms in the Family Law Act in 2006 have stipulated the use of the ADR processes where parties with dispute related to children are required to resort to FDR mechanisms before approaching court and must make reasonable efforts to resolve the disputes through such alternative mechanisms. The only exception this requirement is that if the parties to the dispute have consented to approach the court to obtain a consent order. According to section 13C of the Act, the court may refer the parties to dispute to family counseling or approach FDR processes at any stage of the court proceedings either on its own (suo motto) or on an application by either party or an independent lawyer of children.
Although there may be certain difficulties while using FDR processes in the context of family violence such as the offender may use FDR processes for committing intimidation or violence against women and child. There may be power imbalances in relationships affected by family violence may weaken the fairness of the negotiating process. However, despite such challenges, there are other advantages of using FDR processes to resolve family violence related disputes, which make it an appropriate means of dispute resolution. Firstly, the FDR processes are quick and cheaper than the court proceedings. Secondly, FRCs in Australia provides three hours of mediation without imposing any charge and many other services are rendered at considerable charges. Thirdly, government and service providers have been trained as FDR practitioners who conduct such ADR processes with considerable safeguards that may result positive outcome of for people who have been subjected to domestic violence.
The concept of state-sponsored arbitration and conciliation to resolve workplace disputes is embedded in the history of Australia. The Conciliation and Arbitration Act 1904 was enacted to resolve the industrial disputes through the alternate dispute resolution processes. The fundamental characteristic of the statute is that it is legally mandatory to inform relevant tribunal about any industrial dispute that arises. While in practice, the parties themselves resolved minor issues without referring them before the tribunal but after notification, the process of informing tribunals becomes mandatory to ensure that tribunals could force the disputants to participate in ADR processes and impose a legally binding outcome.
In any organization, there are two categories of disputes in the workplace, namely, internal and external. Internal disputes in the workplace takes place between employees and management and between employees. External dispute takes place between outsiders and organization such as the contractors, consumers or regulatory bodies.
ADR mechanisms may take place in the organizational workplace when a dispute arises in a workplace between any members such as sexual harassment, unfair dismissal, job dissatisfaction, human resource issues, and co-worker relationship issues. The primary reason for using ADR processes in an organization is that bullying or creating conflict at workplace is a threat to the safety, health and welfare of the employees. It may have adverse repercussion on employers both legally and financially which may lead to poor productivity of the organization further resulting in legal expenses of the company in case of significant harassment and bullying cases.
The ADR process like private mediation is appropriate for resolving disputes arising between employees or employees and management as this process would ensure confidentiality and it shall include engagement of HR manager who would assure that the agreement between the two disputants are strictly adhered to, keeping it confidential. Negotiation takes place to resolve any disagreement especially when it takes place between parties who listen to and are heard by each other or are ready to resolve the disputed issues by developing options to resolve each issue.
Conciliation is a process similar to mediation although the role played by the conciliator is more advisory and directive. Industrial tribunals aim to settle a dispute in a fair, efficient and quickly as compared to court procedures. In court proceedings, a magistrate or a judge shall make a decision regarding the dispute based on law of the land, which is not only time-consuming but is a more formal process.
From the above discussion, it can be inferred that given the significant level of jurisdictional disparity with respect to the ADR processes and programs, the programs must be adapted as per the requirement of particular communities. Although there are limitations associated with ADR processes such as non-uniformity, inaccessibility to different ADR programs, but flexibility in such programs can be considered beneficial for the programs to achieve its desired outcomes. It is a fact that ADR processes are less formal, cheap and provide quick remedy to the grievances as compared to court proceedings, it is still important to determine the most appropriate ADR mechanism that would resolve the dispute concerned, achieving desired outcome.
References
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