ADR processes: Connections between purpose, values, ethics and justice

Abstract

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.

Alternative dispute resolution and access to justice in Australia

“…92-94). These new organisations and fora utilised and developed ADR processes like mediation, conciliation and arbitration and various hybrids that have been subsequently incorporated into the formal court and tribunal systems, and legislated for use in relation to particular types of disputes including disability, small business, health and accident compensation (Akin Ojelabi and Noone, 2017). ADR processes in the civil justice system, community and legislation-based are briefly discussed below, further highlighting the connection with access to justice.…”

“…20 These disputes usually comprise a number of issues including power imbalances arising from lack of information, inability to participate in dispute resolution without sufficient support, costs, the need for timely resolution and significant public-interest matters. These types of legislated ADR interventions are aimed at improving access to justice; however, realising parliament's intentions requires continued monitoring to ensure that the processes do not result in further disadvantage to already disadvantaged parties (Akin Ojelabi and Noone, 2017).…”

“…Where process designers consider issues of justice in formulating objectives, these become embedded in those objectives. The extent to which ADR processes deliver justice, and what type of justice it delivers, is therefore impacted by process objectives (Akin Ojelabi and Noone, 2017).…”

“…ADR organisations or institutions now develop a variety of ADR processes that promote the objectives of those organisations or institutions relating to the form of the dispute and the parties involved. Some processes protect particular interests and promote specific principles of justice (Akin Ojelabi and Noone, 2017, p. 5).…”

Jurisdictional perspectives on alternative dispute resolution and access to justice: introduction

“…The restrictions placed on the mediator by ethical codes appear to disempower them in relation to promoting outcome justice (Noone and Akin Ojelabi, 2014). This also creates ethical dilemmas for ADR practitioners (Akin Ojelabi and Noone, 2017). In some instances, ADR practitioners may withdraw from or terminate the process where they find it difficult to ‘do justice’ because of regulatory constraints (Akin Ojelabi and Noone, 2017; Noone et al, 2018).…”