Alternative dispute resolution and tribunals (SACE Stage 2 Legal Studies)
“Explain the methods of alternative dispute resolution and the role of tribunals, and evaluate their advantages over court proceedings.”
Alternative dispute resolution (ADR) is a set of methods for settling disputes without a full court trial, including negotiation, mediation, conciliation and arbitration. Tribunals such as the South Australian Civil and Administrative Tribunal resolve specific kinds of disputes more cheaply and informally than courts. ADR and tribunals are generally faster, cheaper and less adversarial than litigation, which improves access to justice, though they are less suitable for serious matters needing a binding, enforceable judgment and public scrutiny.
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What this dot point is asking
You must explain the main ADR methods, the role of tribunals, and evaluate their advantages and limits compared with going to court.
Methods of alternative dispute resolution
ADR covers several methods, which differ in how much control a third party has over the outcome.
- Negotiation is direct discussion between the parties, with or without lawyers, to reach an agreement. No third party decides anything.
- Mediation uses a neutral mediator who helps the parties communicate and find their own solution. The mediator does not decide the outcome.
- Conciliation is similar to mediation, but the conciliator is more active and may suggest possible solutions, often using expertise in the subject area.
- Arbitration involves an arbitrator who hears both sides and makes a decision, called an award, which can be legally binding on the parties.
Alternative dispute resolution (ADR) refers to methods of resolving disputes without a full court trial, ranging from negotiation and mediation, where the parties keep control of the outcome, to arbitration, where a third party makes a binding decision.
The role of tribunals
Tribunals are bodies that resolve particular types of disputes outside the ordinary court system. In South Australia the main one is the South Australian Civil and Administrative Tribunal (SACAT), created by the South Australian Civil and Administrative Tribunal Act 2013 (SA). SACAT handles matters such as tenancy disputes, guardianship, and the review of government decisions.
SACAT is designed to be accessible, low cost and less formal than a court, using plain language and flexible procedures. It places a strong emphasis on alternative dispute resolution, often requiring parties to attend a conference, conciliation or mediation before any hearing, which reflects the wider shift toward resolving disputes without full trials.
Advantages over court proceedings
ADR and tribunals offer real benefits, which is why they have been built into the justice system.
- Lower cost, because there is often no need for extended legal representation or a full trial.
- Speed, because matters are resolved more quickly than the court backlog allows.
- Less formality, which makes the process less intimidating and more accessible.
- Preserved relationships, because cooperative methods like mediation are less adversarial.
- Flexibility and privacy, because parties can shape creative outcomes confidentially.
These advantages directly improve access to justice, especially for people who cannot afford lengthy litigation.
Do not treat all ADR methods as the same. The crucial distinction is who decides the outcome. In negotiation, mediation and conciliation the parties keep control and any agreement is voluntary, while in arbitration the arbitrator imposes a binding decision. Saying a mediator decides the case is a common error.
Limits and when courts are better
ADR is not always appropriate. Courts remain better where a binding and enforceable judgment is needed, where there is a serious power imbalance between the parties, where a public ruling and precedent are important, or where serious criminal conduct is involved. A voluntary mediated agreement may also be hard to enforce if a party refuses to comply, unlike a court order.
For the dispute resolution focus area, organise your answer around the methods from least to most binding, name SACAT as the South Australian tribunal example, then evaluate using access to justice. Note clearly that ADR improves access but is unsuitable for matters needing a binding, public, enforceable decision, which gives a balanced judgment.
A SACE extended response rewards a balanced, evaluative argument grounded in the methods.
Step 1: State a contention
Argue that ADR offers real advantages in cost, speed and flexibility but is unsuitable for matters needing a binding public decision.
Step 2: Set out the methods
Explain negotiation, mediation, conciliation and arbitration from least to most binding, and name SACAT.
Step 3: Show the advantages
Show lower cost, speed, privacy, flexibility and preserved relationships compared with court.
Step 4: Show the limits
Show that ADR may produce unequal outcomes where power is unequal and lacks binding authority and precedent.
Step 5: Reach a judgement
Conclude that ADR improves access but courts remain necessary for matters needing a binding, public, enforceable decision.
Connection to the rest of the course
ADR and tribunals connect directly to access to justice and to the adversarial system, which courts have softened by encouraging settlement and mediation. They are central to the dispute resolution focus area and to evaluating whether justice is accessible.
Exam-style questions
Questions in the style of SACE Board exam questions on this dot point, each with a worked answer. They are written by ExamExplained unless tagged "Past paper"; the year shows the paper a question is modelled on.
2019 SACE Stage 2-style6 marksExplain three types of alternative dispute resolution that could be used in civil disputes.Show worked answer →
Two marks per type: name it and explain how it works (three needed).
Mediation. A neutral third party (the mediator) helps the parties communicate and negotiate their own agreement. The mediator does not decide the outcome or give advice; any agreement reached is made by the parties themselves and can be made binding by a contract.
Conciliation. Similar to mediation, but the neutral conciliator takes a more active role, offering suggestions and expert advice on possible solutions. The parties still reach their own agreement, but with more guidance from the conciliator.
Arbitration. An independent arbitrator hears evidence and argument from both sides and then makes a decision. Unlike mediation and conciliation, the arbitrator's determination is usually binding and enforceable, making arbitration the most court-like form of ADR.
2019 SACE Stage 2-style10 marksCritically analyse the effectiveness of alternative dispute resolution in civil disputes.Show worked answer →
For 10 marks, explain ADR, weigh its strengths and weaknesses, and reach a judgement.
- Strengths
- ADR (negotiation, mediation, conciliation, arbitration) is usually cheaper, faster and less formal than court, improving access to justice. It is private, reduces the stress of an adversarial trial, and lets parties reach flexible, mutually acceptable outcomes that can preserve ongoing relationships (for example in family or commercial disputes). It also eases pressure on court backlogs.
- Weaknesses
- Outcomes other than arbitration are not binding unless the parties agree, so a party can walk away. There is a power imbalance risk - a stronger or better-resourced party may dominate a weaker one without the protections of court procedure. ADR does not create precedent, may be unsuitable where a clear legal ruling or public determination is needed, and an unsatisfactory result may still end up in court.
- Judgement
- A strong answer concludes ADR is highly effective for many civil disputes, especially where cost, speed and relationships matter, but is less effective where there is a serious power imbalance or a binding, public legal ruling is required.
Practise this
Sources & how we know this
- Stage 2 Legal Studies subject outline (2025 onwards) — SACE Board
- Stage 2 Legal Studies: external assessment — SACE Board