Exploring Avenues for the Growth of Private Alternative Dispute Resolution in Australian Workplaces

Abstract

Many alternative dispute resolution (ADR) schemes emerged in Australia during the 1980s in a wide range of jurisdictions. Conciliation or mediation are included as a compulsory first step in dispute resolution in family law, consumer law, residential tenancies, and equal employment opportunity. In the federal and supreme courts, mediation is offered to disputants where cases have been backlogged and there is agreement between the disputants to proceed to mediation (Limbury, 1991). Tribunalbased ADR in Australian industrial relations represents an exception to these relatively recent developments as state and federal industrial tribunals have traditionally practised conciliation and arbitration. Instead, a more individualised form of ADR is emerging in the Australian workplace with mediation as a private alternative to the publicly funded system. This paper traces the development and opportunities for growth of private ADR as it has emerged in Australian workplaces through an examination of a range of contributing factors such as the legal and political environment; the decline of unionism; the growth of individual contracts; and the growth of management consultants. The article draws upon on academic literature; a survey of 129 employers across Victoria conducted by the author in 2000 and the analysis of 2000 dispute resolution clauses from federal Enterprise Agreements certified between 1999 and 2001.