By Pip Ryan -
Snapshot
- A recent study of more than 100 judges, published by the Australian Institute of Judicial Administration, sheds new light on the way the judiciary perceives and makes use of court-referred alternative dispute resolution.
- The results illustrate how forms of CADR can be practised and supported by legal policy, structure of hearings, and court culture in almost every type of case.
- The authors of the study argue that CADR is never categorically or inherently useful (or inappropriate) and that court-by-court guidelines and training are important in increasing the consistency with which judges weigh up intersecting factors.
This excellent work, Court-Referred Alternative Dispute Resolution: Perceptions of Members of the Judiciary – An overview of the results of a study, (Nicky McWilliam, Alexandra Grey, with Helen Zhang, Tracey Yeung and Dharmita Padhi, Australian Institute of Judicial Administration, 2017), is one of the first comprehensive and comparative studies into the perceptions of court-referred alternative dispute resolution (‘CADR’) by a cohort of the Australian judiciary. It investigates their use and understanding of CADR. It also explores attitudes that underpin whether or not referral will be suggested or ordered; whether these decisions are accompanied by explanations; whether CADR training has been provided to judges; and the types of matters that may be court-referred to alternative dispute resolution (‘ADR’).
The authors of the study begin by presenting a review of the relationship between court-referred and other types of dispute resolution processes that have been popular since the 1980s. Citing the former Chief Judge in Equity of the Supreme Court of New South Wales, they distinguish CADR from other types of ADR by referencing the concern that ‘CADR may be at variance with key tenets of ADR such as voluntary participation’ (The Hon P A Bergin, ‘The Objectives, Scope and Focus of Mediation Legislation in Australia’ (Paper presented at Mediate First Conference, Hong Kong 11 May 2012) 1, 4–5 [9]–[10]. For this reason, the authors of the study have explored what motivates or prompts the bench to refer a matter to ADR when the matter might otherwise have remained fixed on its path to judicial determination.
