Court-referred ADR: perceptions of members of the judiciary in Australia

Dr Nicky McWilliam1

Visiting research fellow, faculty of law UTS, Sydney

A recent study employed qualitative and quantitative methods in examining attitudes of 104 Australian judges across five levels of the Australian court system with respect to court referred alternative dispute resolution (CADR) . CADR was defined as a broad generic term encompassing referral to well-known ADR processes such as mediation, facilitation and negotiation and also processes including judicial case management, specialist opinions and non-adversarial processes born of disciplines including restorative justice, comprehensive law, creative problem solving, diversion, and therapeutic jurisprudence. CADR can occur because of a judge-led discretion or initiative, which may be pursuant to legislation or court-based procedure or practice, with or without the parties’ consent or as a request or application by parties or their representatives.

Judicial attitudes were explored in relation to areas including: engagement with ADR; impact of CADR on court proceedings, work of the court, judicial workload, judicial culture and judicial satisfaction; and if CADR requires judges to understand ADR and requires considerations of needs and interests of the parties appearing before them.  The findings provide some valuable information about how judges perceive CADR and the extent to which its practices influence the way in which judges conduct their matters and carry out their roles.

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