By Kristy Mantzanidis
It was not until my recent opportunity to shadow a barrister during two Conciliation Conferences that I truly appreciated the gem we know as Appropriate Dispute Resolution (‘ADR’). Certainly, we read and hear about the benefits of ADR including a timely, cost effective resolution, party control and informal setting. It is not until you actually witness such outcomes first hand, however, that you may truly appreciate the effectiveness of ADR. In particular, for me it resembles a resolution process at the heart of justice, achieving positive outcomes ‘for the parties’ as opposed to a battle of tyranny that often results in court proceedings.
There are two key elements that stood out during my observations of ADR including: the differing approaches of a conciliator and the effect this has on the outcome of ADR, and party control.
Firstly, the two conciliators I observed took very different approaches in running the conferences. It was particularly interesting to note these approaches and the effect they had on the smooth running of the meeting and promoting a final outcome. The first conciliator was authoritative yet understanding. Structured yet fair. She ran the conference initially by making the parties feel welcome and important. This was achieved by asking them simple questions such as whether they would need to move their cars due to city parking restrictions and reinforcing that they were able to ask for a break at any point. She followed this opening by listing key issues on the white board and asking for parties’ input, then allowing the conversation to flow between parties, evenly balanced centered on those issues of importance. Strengths were constantly re-visited so that parties can see their positive progress and aim for more movement towards resolution. The mediator would also utilise a calming technique by lowering her tone and slowing down the tempo of her speech when parties appeared reserved. This instantly calmed them down and allowed them to re-consider the other side’s requests. The result was a timely resolution that benefited both parties. The balance that this outcome struck was incredible with both parties finally clarifying their concerns and actually sacrificing for the other party in a balanced and beautiful resolution that suited both parties and preserved their relationship in such a way that any future issues could be dealt with amicably.
In contrast, the second conciliator was more reserved and allowed parties to structure the process. This generated a very different outcome. On the one hand, parties felt they had complete control over the process and outcome, which was a benefit to them. However, allowing parties such control did make the process of resolution slightly longer. The benefits of this approach include allowing parties to put forward their interests and to test their relationship. It is certainly a method of testing whether parties can preserve a relationship into the future. After some discussion and extended negotiations, there was again a positive resolution that suited the interests of both parties and allowed ongoing revision of the agreement so as to tailor it over time. Once again, elements such as party control and fair resolutions highlight the numerous benefits of ADR.
On another note, the nurturing and guidance that ADR offers parties also makes this process fundamental. Such nurturing goes beyond the chance for parties to have a voice in the process. In particular, the first Conciliation Conference I attended included a party who spoke English as a second language. This was not a barrier to the process, nevertheless, the conciliator was more than accommodating, allowing this party a person of support and time to process the options and consider what decisions to make. Such support highlights nurturing and compassion, values that often escape daily court proceedings that can be brought to life in the ADR field.
Balance, party control, fair outcomes and compassion are just some of the advantages provided by ADR. ADR allows parties to devise their own creative solutions and in turn increases collaboration, facilitation and long-term agreements that can be sustained. Importantly, solutions can tailor parties’ individual needs and benefit not only parties to the proceeding, but carry extended benefits to all parties affected by the outcome including family and friends. Witnessing ADR first hand certainly highlights the importance it plays in balancing the scales of justice. Currently, it is implemented in family court matters, civil matters, workers compensation cases and more. Interestingly, over 60% of practitioners agree over 90% of cases are settled via ADR with its popularity increasingly growing into the future.
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