Alternative dispute resolution in Queensland: QCE Legal Studies

What this dot point is asking

QCAA wants you to know the methods available for resolving civil disputes in Queensland short of (or alongside) a court hearing, and how each works. Expect a 3-5 mark short response.

The answer

Mediation

A non-adversarial process in which a neutral third party (the mediator) facilitates a discussion between the disputing parties to help them reach a mutually acceptable resolution. The mediator does not impose a decision.

In Queensland, mediation is widely used and often required as a step in litigation. The Uniform Civil Procedure Rules 1999 (Qld) Chapter 9 Part 4 allows courts to refer matters to mediation. Court-annexed mediation in the Supreme, District and Magistrates Courts of Queensland is conducted by accredited mediators.

The Dispute Resolution Centres Act 1990 (Qld) established Dispute Resolution Centres across Queensland providing free or low-cost mediation services for civil and neighbourhood disputes.

Strengths. Cheap. Confidential. Preserves the relationship between the parties.

Weaknesses. Non-binding unless the parties sign a deed of settlement. Power imbalances can affect outcomes.

Conciliation

Similar to mediation, but the conciliator may offer expert advice on a resolution. The conciliator's view is non-binding.

In Queensland, conciliation is used by several specialist agencies:

• the Anti-Discrimination Commission Queensland (now the Queensland Human Rights Commission) conciliates discrimination complaints under the Anti-Discrimination Act 1991 (Qld) and the Human Rights Act 2019 (Qld);
• the Fair Work Commission conciliates national-system employment matters.

Arbitration

A binding process in which the parties appoint an arbitrator to hear evidence and make a decision. The arbitrator's award is enforceable as a court judgement under the Commercial Arbitration Act 2013 (Qld) s 35. International commercial arbitration is governed by the International Arbitration Act 1974 (Cth).

Strengths. Binding outcome. Private. Often faster than litigation. Parties can choose an arbitrator with relevant expertise.

Weaknesses. Costly. Limited rights of appeal (Commercial Arbitration Act 2013 (Qld) s 34).

Tribunals: the Queensland Civil and Administrative Tribunal (QCAT)

The Queensland Civil and Administrative Tribunal (QCAT) was established under the Queensland Civil and Administrative Tribunal Act 2009 (Qld). QCAT hears matters across:

• consumer claims under the Australian Consumer Law and Fair Trading Act 2010 (Qld);
• retail tenancy disputes;
• residential tenancy disputes under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld);
• anti-discrimination matters under the Anti-Discrimination Act 1991 (Qld);
• guardianship and administration under the Guardianship and Administration Act 2000 (Qld);
• minor civil disputes up to $25,000;
• review of administrative decisions.

QCAT determinations are binding (subject to appeal to the QCAT Appeal Tribunal or in some cases to the Court of Appeal on questions of law).

Strengths. Cheaper than court. Faster. Tribunal members have subject-matter expertise. Parties often represent themselves.

Weaknesses. Limited jurisdiction. Delays can be significant. Some QCAT orders require registration in court for enforcement.

The Queensland civil court hierarchy

• Magistrates Court of Queensland. Civil claims up to $150,000 (Magistrates Court Act 1921 (Qld) s 4).
• District Court of Queensland. Civil claims between $150,000 and $750,000 (District Court of Queensland Act 1967 (Qld) s 68).
• Supreme Court of Queensland. Unlimited civil jurisdiction. Complex matters, class actions, judicial review (Judicial Review Act 1991 (Qld)).
• Queensland Court of Appeal. Appeals from the Supreme Court.
• High Court of Australia. Final appellate court, by special leave.

Choosing a method

The Uniform Civil Procedure Rules 1999 (Qld) require parties to consider settling. The court will often direct mediation before trial. The factors influencing choice include:

• the value of the claim;
• the relationship between the parties;
• urgency;
• the need for a binding outcome;
• the desirability of a public airing of the issue.

Binding versus non-binding outcomes

A key analytical distinction in Unit 2 is whether a method produces a binding outcome. Mediation and conciliation are facilitative: the third party helps the parties reach their own agreement but cannot impose one, so the outcome only binds if the parties sign a deed of settlement. Arbitration and tribunal determinations are determinative: the arbitrator or tribunal member hears the dispute and makes a decision that binds the parties, enforceable as a judgement. Litigation is the most formal determinative process. Knowing which methods bind and which do not is essential when an exam scenario asks you to recommend a method, because a party who needs certainty and enforceability will favour arbitration, QCAT or court, while a party who values relationship and confidentiality will favour mediation.

Access to justice

ADR and tribunals are central to access to justice in Queensland. Courts are expensive and slow, which can deny ordinary people an effective remedy. Dispute Resolution Centres established under the Dispute Resolution Centres Act 1990 (Qld) provide free or low-cost mediation, and QCAT allows self-represented parties to resolve tenancy, consumer and minor civil disputes cheaply. By diverting matters from the courts, ADR also reduces court backlogs, which improves access for the cases that must be litigated. A strong answer connects the choice of method not only to the parties' needs but to the broader goal of making justice accessible.