Alternative dispute resolution

Alternative dispute resolution is when an impartial person helps other people to resolve a dispute.

From 29 October 2014, alternative dispute resolution is included in the Children and Young Persons (Care and Protection) Act 1998, which is the law for child protection in NSW.

Alternative dispute resolution includes:

• voluntary processes arranged by the department, such as family group conferences
• dispute resolution conferences conducted by Children’s Court registrars
• processes external to the Children’s Court, which the court may order parties to attend, such as the mediation service provided by NSW Legal Aid to resolve contact disputes.

If parties are referred to a dispute resolution conference or to an external process by the court, attendance is mandatory.

Who can conduct alternative dispute resolution?

Alternative dispute resolution must be conducted by an impartial person. This is someone who is fair and does not take sides.

Suitably qualified employees of the department (or a designated agency) may conduct alternative dispute resolution if they are not already involved in the matter. However, if this is the case, it is important to manage and address any concerns about independence and perception of bias.

Confidentiality

Confidentiality is important in alternative dispute resolution because it promotes open and honest discussion by the parties about what is in the best interests of a child or young person.

The Act states that anything said or done during the process must not be disclosed to any other person. This means no-one in the alternative dispute resolution can tell anyone else about what happened.

However, there are exceptions to this rule.

A person conducting or participating in the alternative dispute resolution may disclose information to:

• prevent injury to a person or damage to property
• make a complaint about the professional conduct of the person conducting the alternative dispute resolution or a legal representative to an appropriate body.

The person conducting the alternative dispute resolution process may also disclose information:

• if the person who gave the information consents to its disclosure
• to make a risk of significant harm report.

Can the information be used in court?

Information disclosed during alternative dispute resolution cannot be used as evidence in subsequent proceedings unless all the people participating agree.

Any document prepared for, during, or as a result of alternative dispute resolution cannot be used as evidence in court unless the people named or identified in the document have agreed to it being used.

Information may be used as evidence in legal proceedings where such information has been disclosed to:

• make a risk of significant harm report
• prevent injury to a person or damage to property.