Alternative dispute resolution & Elders’ Councils as decision making bodies

Tuesday, 5 June 2018
Dr Lisa Strelein
Dr Valerie Cooms

Alternative dispute resolution (ADR) describes a process other than going to Court, in which a neutral person assists people in dispute to resolve their issues. These processes may be facilitative, advisory, determinative or a combination of all these things. Conciliation is a process in which the parties to a dispute, assisted by the conciliator, identify the issues in dispute, develop options, consider alternatives and endeavour to reach an agreement. Mediation is an informal process for helping people in dispute sort it out for themselves without going to court. Mediators are neutral and they encourage those in the dispute to talk to each other about the issues and resolve them. The mediator is not an advice-giver or decision-maker. Arbitration is a process where parties in dispute, assisted by the arbitrator commit to a formal dispute resolution process usually governed by legislation. Arbitration must be conducted according to the principles of natural justice and the arbitrator makes a decision to resolve the dispute. The NNTT for example exercises arbitral functions under the Native Title Act 1993 (Cth) in certain disputes such as expedited procedure objections. This session examines the issues arising when native title disputes are referred to Elders’ Councils.