Alternative Dispute Resolution (ADR) processes aim to resolve a dispute outside of the usual court processes. 

There are several reasons why ADR may be an appealing option for disputing parties:

  • More efficient and less expensive way to resolve a dispute;
  • Resolutions reached through ADR are not confined to the remedies that a court can provide. This can lead to more innovative solutions which accommodate the needs and desires of the parties. 
  • Usually private, allowing for a dispute to be resolved without reputational damage
  • Less formal 
  • Present a way for relationships between disputing parties to be preserved despite a dispute.

Some contracts also require that parties undertake an ADR process where a dispute arises under the contract. ADR processes may also be court mandated. 

Even where an ADR process does not lead to a resolution, it may assist parties to learn more about the other party/s position and narrow the issues which are being disputed.

Direct Negotiation

A disputing party may wish to speak with the other party/s to the dispute directly to see whether a resolution can be reached. Direct negotiation may be preferable where you still have a working relationship with the other party/s to the dispute. It may also result in the parties reaching a more innovative and ‘win/win’ solution. 

Your negotiating position can be greatly enhanced where you have a lawyer to conduct negotiations on your behalf. A lawyer can provide an impartial view of the strengths and weaknesses of your position and help to best articulate your position. It is helpful for a lawyer to be a party to the negotiations so that they can document any agreement reached. 


A mediation is a meeting between the disputing parties that is facilitated by a neutral third party (a mediator). The mediator does not take sides but is instead there to assist the parties in reaching their own resolution. The mediator will moderate the discussions between the parties and help to identify the issues where the parties do not agree. Mediation can allow for each of the parties’ concerns to be heard. It can also facilitate the parties to reach solutions which are not restricted to the remedies provided by a court. A mediation may also be preferable where parties wish to resolve their dispute in a confidential manner.

Whilst a mediation is not an official court process, mediations may at times be court mandated and there are significant advantages to having legal representation. A lawyer will ensure that your views are best put forward to the other parties. A key feature of a mediation is that any agreement reached in a mediation is not binding unless the parties choose to be bound by it. It is important that any agreement reached is properly documented so that the dispute is resolved once and for all. A lawyer can help to ensure that a written agreement provides you with the best protection in the future. 


An arbitration is a process where parties present arguments to an arbitrator who then makes a decision which is binding on the parties. The parties must agree to participate in, and be bound by, the arbitration before commencing. Arbitration is a private process and can be confidential, providing a discrete way to resolve a dispute. 

It may also be a requirement under a contract that any dispute proceed to arbitration. This is common in commercial and construction contracts. The Commercial Arbitration Act is a model law which has been adopted in each of the states and territories in Australia and sets out the rights and obligations of the parties to an arbitration. 

Expert determination 

Expert determination is a process where the parties agree to have their dispute resolved by an independent third with industry experience or knowledge in a particular subject area. This is an informal process, but one which results in a binding decision.

Like arbitration, there may be a clause in a contract which requires expert determination to occur when a dispute arises under that contract. However, where no such clause exists, parties who wish to undertake this ADR process can still enter into a contract agreeing to undertake and be bound by an expert determination process. 

The determination made by the expert is binding on the parties. This type of ADR process may be appropriate where there is a dispute over a specific matter and the parties wish to have the dispute resolved by someone with the requisite industry knowledge. 


Conciliation is a process where the disputing parties meet with a third party (a conciliator) to discuss the dispute. The conciliator may hold specialist knowledge which they use to help guide the discussion. Unlike a mediator, the conciliator usually plays a more directive and advisory role. This type of ADR process may be used in a workplace where there has been an allegation of discrimination. This process can help to identify the disputed issues and speak about possible terms of settlement. This process is not usually binding, and any agreement reached in a conciliation must be agreed upon by the parties. 

In each of the above ADR processes, it can be useful to have a lawyer present to ensure that your position is best put forward and any agreement is documented to ensure the finality of the dispute. Where an ADR process does not lead to a resolution, having a lawyer involved can mean that you are informed of your options and in the best position to choose your next step.

If you have a dispute and are unsure what the best way of resolving it might be, contact Rouse Lawyers to discuss your options. 


The information contained on this website is for general guidance on matters of interest only. The application and impact of laws can vary widely based on the specific facts involved.

Accordingly, the information on this site is provided with the understanding that the authors and publishers are not providing legal advice. As such, it should not be used as a substitute for consultation with professional legal advisers. Before making any decision or taking any action, you should consult with a professional lawyer from Rouse Lawyers.