ADR processes are now used extensively in Australia to resolve disputes in courts and tribunals. In addition, government departments see ADR as an important tool in improving access to justice for ordinary citizens. However, what justice means in different ADR contexts may differ. One possible explanation for the divergence of views on justice and ethics in ADR practice is the fact that practitioners come from different professional backgrounds and disciplines and also use a range of processes. Also, while some processes have clearly stated normative purposes under enabling legislation and Charters, others do not. There are also industryscheme ADR processes with normative purposes beyond individual disputes. Drawing from empirical research, this paper begins to explore the relationship between process purpose, underlying values and ethical responsibilities that arise for a range of ADR practitioners working in different fields and the potential of those processes to promote substantive and procedural justice.
In the last four decades, there has been a significant increase in the number and variety of appropriate dispute-resolution (ADR) institutions and processes in Australia as a critical aspect of improved access to justice. Although more people can get assistance to resolve their disputes, the issues of whether this access is shared equally within the community, how the disadvantaged fare in these processes and what type of justice is provided by the various ADR processes are explored. The relevance of legislative objectives of ADR fora and processes to justice outcomes is highlighted. It is argued that ADR processes need to be designed and implemented bearing in mind the type/nature of the dispute, parties involved and availability of resources, and to have an overarching objective of promoting access to justice for users. Additionally, improved access to justice requires ongoing and rigorous evaluation of ADR processes to ascertain whether justice objectives are being achieved.
The context of this paper is the several innovative reforms since the Australian government changed the family-law system more than forty years ago with the enactment of the Family Law Act 1975 (Cth). Whilst no-fault divorce was introduced over four decades ago, the watershed effect of replacing a blaming culture with a collaborative problem-solving approach to family disputing has provided a stepping stone for a progressive pathway to less adversarialism in family conflict. This narrative resonates throughout the family-law system today. It also continues to guide the justice discourse in family matters. This paper focuses on developments in the family-law system canvassing several legislative amendments that demonstrate the use of alternative dispute resolution (ADR) as a means of improving access to justice in relation to family disputes in Australia. It is argued that, in the family-law system, justice and ADR are inextricably linked. In support of this contention, the growth, development and evaluation of family dispute resolution is considered; access to justice issues that arise are highlighted. Finally, it reviews ramifications for the future considering recommendations from the recent inquiry into the family-law system.
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