| |
WHAT IS ALTERNATIVE DISPUTE RESOLUTION?
The Retail Leases Act 1994 requires that the Retail Tenancy Unit work through all lease disputes through alternative dispute resolution (ADR). ADR refers to the wide variety of methods by which conflicts and disputes are resolved other than through litigation.
ADR was developed in response to growing court queues, rising costs of litigation, and time delays, and includes mediation, facilitation, early neutral evaluation, and conciliation.
The following are some of the many ADR processes. The most common process used by the Retail Tenancy Unit is mediation.
Mediation
Mediation is a process in which the disputants, with the assistance of a neutral mediator, identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The process has several features:
1. It is voluntary – disputants can leave at any time for any reason, or no reason.
2. It is collaborative – disputants are encouraged to work together to solve their problems and to reach what they perceive to be the best agreement.
3. It is controlled – disputants have complete decision-making power and a veto over each and every provision of any mediated agreement, nothing can be imposed on either party.
4. It is confidential – mediation is confidential by virtue of the provisions of the Retail Leases Act 1994. Mediation discussions are not admissible in any subsequent court or tribunal proceedings, except for a finalised and signed mediated agreement.
5. It is impartial – the mediator is responsible for assisting each party and cannot favour the interests of any one disputant, nor any particular result in the mediation.
Early neutral evaluation
Early neutral evaluation (ENE) is a process by which the disputants present arguments and evidence to a neutral evaluator. The evaluator determines the key issues in dispute and the most effective means through which the dispute may be resolved, without making any determination as to the facts of the dispute.
ENE is not mediation. The evaluator advises the parties at the outset directly and unambiguously that their appointment is to act as an evaluator and not a mediator.
Facilitation
In the facilitation process, a skilled impartial facilitator helps the disputants to identify and solve problems by improving each party’s ability to work together effectively.
Conciliation
Conciliation is a process in which the disputants, with the assistance of a conciliator, identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The conciliator may have an advisory role on the content of the dispute or the outcome of its resolution, but not a determinative role.
|
|