AUSTRALIA Law and Practice Contributed by: John Lee, Michael Williams, Siabon Seet and Vanessa Farago-Diener, Gilbert + Tobin
Costs Court-funded ADR services
Interim Measures in ADR Proceedings Under the Commercial Arbitration Act 2010 (NSW) and its counterparts in other jurisdic - tions, arbitral tribunals have the power to grant interim measures to preserve the status quo, protect evidence, or prevent imminent harm to the arbitral process. Examples include injunc - tions preventing one party from selling disputed assets and orders for the preservation of confi - dential documents. These measures can be granted before a final award is made and are binding on the parties. However, enforcement still relies on the super - visory power of courts if one party refuses to comply. Interim Relief From the Federal Court of Australia In parallel, the Federal Court may grant interlocu - tory 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 damage during the ADR process.
The court provides court-based mediation ser - vices free of charge, particularly when conduct - ed 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 registrar for mediation as part of procedural case management. These sessions are conducted at the court premises or online, depending on loca - tion and party preferences. No administrative or booking fees are charged, and mediation docu - ments are usually submitted in a streamlined, informal format. Private ADR providers Not all mediations occur through the court. In some circumstances – particularly in com - plex, high-value commercial disputes such as trade secrets matters – parties opt to use pri - vate mediators who bring specialised industry or legal expertise. A private ADR process will include additional costs outside legal fees. For example, a private mediator in Australia will usu - ally 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. Narrowing the issues, clarifying facts, or resolving some claims can reduce overall trial time and the associated legal costs.
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