Court-referred alternative dispute resolution

Grey, A

Court-referred alternative dispute resolution

Grey, A

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Publisher:: The Australasian Institute of Judicial Administration Incorporated
Publication Type:: Report
Citation:: 2017, pp. 1-75
Issue Date:: 2017-10

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Field	Value	Language
dc.contributor.author	Grey, A https://orcid.org/0000-0002-2970-6969
dc.date.accessioned	2021-04-16T10:25:19Z
dc.date.available	2021-04-16T10:25:19Z
dc.date.issued	2017-10
dc.identifier.citation	2017, pp. 1-75
dc.identifier.isbn	978-1-875527-16-8
dc.identifier.uri	http://hdl.handle.net/10453/148177
dc.description.abstract	This article presents an overview of the results of a study examining judicial attitudes to court-referred alternative dispute resolution (CADR), drawing on data collated from 104 judges (including magistrates) from the three tiers of NSW Courts, the Federal Court and the Federal Circuit Court. The study consisted of a questionnaire and semi-structured interviews that examined judicial engagement, perceived impact and importance, understanding and the outcomes of CADR. The overall participation rate was 30 per cent, ranging from 15 per cent of the Local Court bench, to 45 per cent of the NSW Supreme Court. The courts studied each have different functions and preside over disparate work requiring distinct CADR processes, but analysis reveals some important consistencies across these courts in relation to CADR, particularly a general engagement with CADR across the judiciary. The overall results suggest that judges across the courts do consider CADR. The positive experience overall, even where some judges saw CADR as slightly increasing rather than decreasing their workload, confirms the potential for CADR to improve the efficiency, accessibility and outcomes for the courts. In the main, judges presiding over civil matters see CADR as usefully falling within their role, but the data also reveal factors that cause CADR to be perceived as inappropriate in some types of civil cases. Unsurprisingly, judges are generally more reluctant to consider CADR (including therapeutic interventions) in criminal matters; however, magistrates report strong acceptance of CADR practices in criminal proceedings. The study analyses intersecting factors that contribute to judges‘ perceptions that CADR is inappropriate in certain kinds of case, factors that go beyond whether a matter is in a civil or criminal division. The key factors are the rank of the court (including whether or not it is appellate), the volume of casework, the timing of CADR within proceedings, lawyers‘ roles and court culture (including judges‘ awareness of what their fellow judges do and think in relation to CADR). This article therefore argues that CADR is never categorically or inherently useful (or inappropriate) and that court-by-court guidelines and training are important to increasing the consistency with which judges weigh up these intersecting factors.
dc.language	en
dc.publisher	The Australasian Institute of Judicial Administration Incorporated
dc.rights	info:eu-repo/semantics/openAccess
dc.title	Court-referred alternative dispute resolution
dc.type	Report
pubs.organisational-group	/University of Technology Sydney
pubs.organisational-group	/University of Technology Sydney/Faculty of Law
utslib.copyright.status	open_access	*
pubs.consider-herdc	false
dc.date.updated	2021-04-16T10:25:18Z
pubs.confidential	false
pubs.place-of-publication	Australasian Institute of Judicial Administration Incorporated
dc.location	Australasian Institute of Judicial Administration Incorporated

Abstract:

This article presents an overview of the results of a study examining judicial attitudes to court-referred alternative dispute resolution (CADR), drawing on data collated from 104 judges (including magistrates) from the three tiers of NSW Courts, the Federal Court and the Federal Circuit Court. The study consisted of a questionnaire and semi-structured interviews that examined judicial engagement, perceived impact and importance, understanding and the outcomes of CADR. The overall participation rate was 30 per cent, ranging from 15 per cent of the Local Court bench, to 45 per cent of the NSW Supreme Court. The courts studied each have different functions and preside over disparate work requiring distinct CADR processes, but analysis reveals some important consistencies across these courts in relation to CADR, particularly a general engagement with CADR across the judiciary. The overall results suggest that judges across the courts do consider CADR. The positive experience overall, even where some judges saw CADR as slightly increasing rather than decreasing their workload, confirms the potential for CADR to improve the efficiency, accessibility and outcomes for the courts. In the main, judges presiding over civil matters see CADR as usefully falling within their role, but the data also reveal factors that cause CADR to be perceived as inappropriate in some types of civil cases. Unsurprisingly, judges are generally more reluctant to consider CADR (including therapeutic interventions) in criminal matters; however, magistrates report strong acceptance of CADR practices in criminal proceedings. The study analyses intersecting factors that contribute to judges‘ perceptions that CADR is inappropriate in certain kinds of case, factors that go beyond whether a matter is in a civil or criminal division. The key factors are the rank of the court (including whether or not it is appellate), the volume of casework, the timing of CADR within proceedings, lawyers‘ roles and court culture (including judges‘ awareness of what their fellow judges do and think in relation to CADR). This article therefore argues that CADR is never categorically or inherently useful (or inappropriate) and that court-by-court guidelines and training are important to increasing the consistency with which judges weigh up these intersecting factors.

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http://hdl.handle.net/10453/148177