Consultation Paper on Alternative Dispute Resolution - Law Reform ...

and the promise of a permanent memorial to the children whose organs had
been retained by the hospital. 198
(1) Procedural Flexibility
3.178 As noted in the European Commission‘s 2002 Green <strong>Paper</strong> on ADR:
―ADRs are flexible, that is, in principle the parties are free to have
recourse to ADRs, to decide which organisation or person will be in
charge of the proceedings, to determine the procedure that will be
followed, to decide whether to take part in the proceedings in person
or to be represented and, finally, to decide on the outcome of the
proceedings.‖ 199
3.179 The ability of the parties to select ADR professionals who are
qualified to deal with the issues that are specific to their dispute is a principal
element of flexibility in ADR. The ADR professional need not be from a legal
background but may be an expert in whatever area the dispute is about.
3.180 In addition, ADR offers greater procedural flexibility than litigation.
For example, the hearings conducted by a neutral in mediation or conciliation
may be held at any place and at any time, subject to agreement. ADR
processes also allow parties to apply their own knowledge and creativity in the
process, ensuring that their needs are met more closely than the traditional
litigation system is able to do. This in turn promotes party empowerment.
(2) Flexibility of Outcome
3.181 Another feature of flexibility which the Commission views positively is
the variety of outcomes available in ADR. In facilitative and advisory ADR
processes, the agreement may contain a wide range of novel outcomes which
would not normally form part of a court agreement and which may provide
solutions that better suit each parties‘ needs.
3.182 The New South Wales Law Reform Commission has also recognised
that mediation can provide a greater range of remedies that those available
though the courts including:
an apology;
an explanation;
the continuation of an existing professional or business relationship
perhaps on new terms; and
198 See Chapter 1, above.
199 Green <strong>Paper</strong> on alternative dispute resolution in civil and commercial matters
COM/2002/0196 Final. Available at http://eurlex.europa.eu/.
123