Resolving Disputes Without Courts?

Abstract

Courts and Tribunals play a critical role in managing and finalizing disputes within Australia. They assist to articulate the rule of law and ultimately can determine rights. Most disputes are however resolved outside court and tribunals and recent research has explored whether more can be done to support dispute resolution before court proceedings are commenced and about how to foster a strong pre action or pre filing Alternative Dispute Resolution (ADR) environment. Creating a culture where disputants resolve disputes at the earliest possible times has been the focus of a number of government and policy initiatives in recent years and a central plank in cultural change efforts has been the development and extension of pre-action protocols, obligations and schemes that now exist in various forms across Australia. These are intended to encourage the early resolution of disputes without the need to commence proceedings in a court or tribunal. This article explores these different approaches and empirical research that suggests that such approaches can be effective where local, systemic and cultural factors are considered. In addition, in some cases 'light' arrangements may be effective whilst in other systems, arrangements that are more elaborate can work effectively.