AUSTRALIA Law and Practice Contributed by: John Lee, Siabon Seet, Vanessa Farago-Diener and Irini Lantis, Gilbert + Tobin
Timing of ADR mechanisms in proceedings When ADR is introduced into proceedings is just as crucial as the type of mechanism used. In the court, ADR can occur at various stages – before trial, dur - ing proceedings, and even in rare cases post-trial – depending on the complexity and nature of the case. Costs Court-funded ADR services The court provides court-based mediation services free of charge, particularly when conducted by one of its registrars. This model is both accessible and cost- effective, removing one of the primary barriers that often deter parties from engaging in formal dispute resolution. In most matters, a judge may refer the case to a reg - istrar for mediation as part of procedural case man - agement. These sessions are conducted at the court premises or online, depending on location and party preferences. No administrative or booking fees are charged, and mediation documents are usually sub - mitted in a streamlined, informal format. Private ADR providers Not all mediations occur through the court. In some circumstances – particularly in complex, high-value commercial disputes such as trade secrets matters – parties opt to use private mediators who bring spe - cialised industry or legal expertise. A private ADR process will include additional costs outside legal fees. For example, a private mediator in Australia will usually charge AUD10,000 to AUD25,000 to attend a mediation, usually shared between the parties.
Despite these expenses, private ADR is often still cheaper than a trial, which can involve weeks of court time, extensive discovery, expert witness testimony, and long preparation. Another cost consideration is that ADR may shorten litigation, even if it does not fully resolve the case. Nar - rowing the issues, clarifying facts, or resolving some claims can reduce overall trial time and the associated legal costs. Interim Measures in ADR Proceedings Under the Commercial Arbitration Act 2010 (NSW) and its counterparts in other jurisdictions, arbitral tribunals have the power to grant interim measures to preserve the status quo, protect evidence, or prevent immi - nent harm to the arbitral process. Examples include injunctions preventing one party from selling disputed assets and orders for the preservation of confidential documents. These measures can be granted before a final award is made and are binding on the parties. However, enforcement still relies on the supervisory power of courts if one party refuses to comply. Interim Relief From the Federal Court of Australia In parallel, the Federal Court may grant interlocutory relief in aid of arbitration or ADR processes. A party may apply to the court for an injunction, asset freeze, or other urgent orders if there is a risk of serious dam - age during the ADR process.
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