ADR in Practice

  • POSTED BY Melinda
  • Oct-07-2014

Last week we had the opportunity to see ADR in action through visits to various Queensland courts and tribunals. Of particular interest was our visit to the Fair Work Commission, which is responsible for maintaining a safety net for employees and employment conditions as well as regulating other workplace issues. Conciliation is one of the tools used by the Commission to resolve disputes, which we discovered generally occurs via telephone, is not binding on parties with the matters discussed in conciliation being confidential and not admissible at any subsequent hearing.  At the other end of the spectrum the Tribunal conducts arbitration hearings which are more formal in nature and are usually on the record. During our visit we were lucky enough to observe a live telephone conciliation which was an invaluable experience for our guests.

One of the things we observed in the conciliation was how little the conciliator spoke, the conciliator explaining the reason for this being to give parties a sense of self determination over the outcome. She told us that the key to being a good conciliator is to listen and then focus on the interests of the parties, why are they seeking a particular outcome and how can that can be achieved. In the past year 36,600 disputes were lodged with the Commission, which led to 19,000 meetings and conferences and 1000 arbitration hearings, with the majority of matters being settled before they reached a hearing. Even if not settled disputes can be re4solved through the commission relatively quickly, and even a complex matter can be dealt with in six months which reinforces the importance of Alternate Dispute Resolution in providing meaningful results for clients.

We also had the pleasure of visiting and viewing a session at the Indigenous Issues and Therapeutic Sentencing court.  This court has been in existence since 2002 where it was set up via consultation with the Chief Magistrate at the time and various Indigenous elders.  The court seeks to give indigenous defendants the same opportunities as non-indigenous defendants.  Unlike in other courts the magistrate directly addresses and asks questions of the accused, and whilst that appears informal, the basic formalities of a court are still adhered to.

The elders play a key part in proceedings, their advice and opinions being highly regarded and the magistrates taking the advice of the elder’s into account when passing a sentence. The court also utilises cultural reports and health checks. The purpose of the cultural report is to gather information in relation to the personal cultural background of the defendant, also looking into any possible alcohol and substance abuse issues. The health check is required to ensure that defendants can participate in any activities that may be ordered by the court. Despite the amazing work done by this court we were sad to learn that resources available to it are discretionary, and at the whim of the elected government at the time.

We also visited the new Supreme and District Court complex in Brisbane; where we were able to view a jury trial which was a novel experience for our guests as the Czech Republic operates under the Inquisitorial system where jury trials do not occur.

This week’s visits were a great learning experience for our guests and gave them a chance to see the ADR processes in action in Queensland. Over the next two weeks Michaela and Veronika will continue to work on a range of workshop presentations to take back to the Czech Republic to explain these practical applications of ADR to promote its growth and acceptance.

Our sincere thanks go to Fair Work Commissioner Susan Booth, Magistrate Tina Previtera and Teresa Kearney from Russells Lawyers for granting us access to their respective organisations over the past week. Their insights and knowledge has been much appreciated.

Sope Agbejule

The MeWise team outside the new District and Supreme Court Complex.

The MeWise team outside the new District and Supreme Court Complex.