Alternative Dispute Resolution - Class notes MB

----------------------------------------------------------------------------------------------------------------------
● One of the more common types of disputes between individuals
is that of 'neighbourhood' disputes. E.g. loud music, barking
dogs, fence disputes, car parking, lawn mowers/ blowers
● Other common disputes between individuals may include
family members - custody of children, divorce/separation ,
contesting a will

1.Alternative Dispute Resolution

ADR allows the participants to have more control over proceedings

ADR uses a variety of methods to resolve disputes between parties

without involving court processes

Going to the court the individuals will lose their privacy

ADR may be as simple as two parties talking through their dispute and
coming up with a decision
● Advantages of ADR:
1. More effient than going to court. Also reduces the number of
cases in the judical system
2. Court is an expencive process - therefore accessible to the
individual
3. Less risk - civil court cases are based on the balance or
probabilities (51%). Therefore, the outcome is responsive to
the needs of the individual.
4. ADR is more private - The individual is part of the process
and can see justice and be part of the process

2.Define Negotiation
 ● any dialogue intended to resolve disputes and/or produce an
agreement on further courses of action
● Advantages
- No economic cost involved
- Does not involve going to court
- It is private
- Each part becomes part if the “legal” solution
● Disadvantages
- May not resolve the dispute. But make it worse
- One party may not want to compromise OR lacks tolerance
and understanding
- The outcome is NOT legally binding

3.Define Mediation
● Mediation is a form of alternative dispute resolution designed to
help two (or more) parties, in the presence of a neutral third party,
to reach an agreement
● Involve a neutral and independent third party who helps theparties
to negotiate their disagreement and to come to a decision that they
both find acceptable.
 ● The mediator does not provide advice on the matters or impose a
decision on the parties.
● Advantages
- No economic cost involved
- Does not involve going to court
- It is private
- Inculdes a professional trained person the assist with the
finding of a solution
● Disadvantages
- May not resolve the dispute. But make it worse
- The decision is NOT legally binding

4.Define Conciliation

● a form of alternative dispute resolution in which the disputing

parties use the services of a conciliator, who takes an active role
advising the parties, suggesting alternatives and encouraging the
parties to reach agreement.
● conciliator may advise the parties, although he or she does not
make a decision for them.
● Conciliator is often a legal professional
● Conciliation outcome may require both parties to sign a document
● Advantages
- No economic cost involved
- Does not involve going to court
- It is private
- Inculdes a professional trained person usally a legal
professional to assist with the finding of a solution
● Disadvantages
- May not resolve the dispute. But make it worse
- The decision is NOT legally binding

5.Define Arbitration
Abritiriation is a form of alternative dispute resolution in which the
disputing parties present their cases before an arbitratorm who makes a
decision that is binding on the parties

The arbititator will negotiate an agreement between the disputing parties

and require them to sign a formal agreement

Advantages
- No economics cost involved
- Does not involve going to court
- Its private
- Includes a professional trained person usually a legal professional
to assist with the finding a solution
- The decision is legally binding on both parties

Disadvantages
- Short term resolution

6. Court process
- If the individuals involved in a dispute cannot resolve it by way of ADR
then they will need to take matters to litigation.
- An alternative to heading directly to court is to go to a tribunal to resolve
the dispute - it is less formal, less expensive, but decisions are legally
binding

7. NSW civil and administrative tribunal (NCAT)

- NSW govt. Tribunal - independent
- NCAT is - efficient, accessible, enforceable, responsive, allows
for individuals to participate in the justice process,
maintains the rule of law.

Molyneux v Cook [2019] NSWCATCD 94

Background events:

Phillipa Cook and Dean Cheek (tenants of Amanda Molyneux’s property) caused damages to the
property of Amanda Molyneux, Amanda made multiple claims, some of which were denied. amanda
complained about the state her property was left in when the tenants moved out, only 2 of 6 claims
were not dismissed.
NCAT Decision:

Philippa Cook and Dean Cheek pay to the landlord, Amanda Molyneux:
(1) Cost of resurfacing scratched timber floor for $2,161.50; and
(2) Cost of Electricity supplied to the premises during the tenancy for $236.72;
(3) In all other respects the landlord’s claim is dismissed.

6.Define Tribunals

7.NSW Civil & Administrative Tribunal (NCAT)

8.Courts available

- An example of NSW court for dispute resolution is the land and enviroment court.
(NSW LEC)
- The same status is the court hierarchy as the Supreme Court of the New South
Wales, and is responsible for interupting and enforcing enviromental law
- Deals with enviromental, development, building and planning disputes, and certain
types of native title claims.
- Example of legislation Trees (Disputes Between Neighbours Act 2006 (NSW).
McDonnell v Harrison [2012] NSWLEC 1291
Undertake research on the following case: McDonnell v Harrison [2012] NSWLEC
1291
---------------------------------------------------------------------------------------------------------------

Which court was this case heard before?

The Land and Enviroment court

Who is the plaintiff?

Sandra Loyalty Mcdonnell

Who is the defendant?

Edward and Sarah Harrison
Outline the facts of the case
Mrs Mcdonnell thinks that trees on Edward and Sarah Harrison’s property are
impacting her property
She is seeking removal of the trees
She is seeking compensation for damages
The trees led to rotting of the Mcdonnells decking, the trees roots moved the paving

What was the issue (or point) for taking the case to court?
● Respondent wanted JUSTICE
- Removal of trees
- Compensation

Outline the final judgement for the case and the concluding statements made
by Senior Commissioner Tim Moore
The application to remove a Jacaranda, a Lillypilly and two Bangalow Palms is
refused.
The respondents are ordered to pay the applicant the sum of $100 within 14 days
as reimbursement of the inspection fees for the tree.

- Therefore, the respondents were successful in the case

Accessibility ● Individuals are able to represent

themselves - therefore reducing
SOME costs for taking the court
action
● However, the std fee for application
to start proceedings is $996 +
additional court and admin costs
● Most individuals are unable to afford
the action in court

responsiveness ● NSW LEC is responsive and does

provide a legal solution to disputes
between individuals

Enforceability ● Decisions are NOT enforceable by

the NSW LEC
● If a party continues on with the same
actions it will escalate it will escalate
to a criminal matter

Maintaining the rule of law ● The NSW LEC does protect the
rights of the individual through the
court process
Justice is seen to have been ● Can be questionable as the outcome
achieved is not enforceable