Dispute resolution processes
At any stage of a dispute, the parties can confer on the best way to resolve it. They can engage a dispute resolution practitioner to resolve the dispute if they consider that direct negotiation has been sufficiently and genuinely attempted and that the circumstances of the dispute satisfy the relevant ATO policy PS LA 2007/23: Alternative Dispute Resolution in Tax Office disputes and litigationExternal Link.
Courts and tribunals that review our disputes make various dispute resolution processes available. The parties work with the courts and tribunals to identify which process will best suit the circumstances of the dispute. The dispute resolution practitioner who conducts those processes is generally an official of the court or tribunal.
The section on review mechanisms for ATO decisions sets out the dispute resolution opportunities available at various external venues including the AAT, the Federal Court and Fair Work Australia.
The types of dispute resolution processes available prior to litigation include negotiation, case conferencing, mediation, conciliation, and neutral evaluation.
The first two of these processes, negotiation and case conferencing, do not need a dispute resolution practitioner.
The structure of a particular dispute resolution process is agreed by the parties (and any dispute resolution practitioner) on the basis of the unique circumstances in the particular dispute.
Case conferencing refers to a discussion, between the taxpayers, their representatives and relevant tax officers. The case conference would usually be prearranged, have an agreed agenda and consideration of who should attend the conference. The case conference may be face-to-face or by phone. A case conference will often involve more than one tax officer, such as the tax officer(s) handling the dispute and any technical experts. The conference may also have an ATO officer acting as a facilitator.
A facilitator is an ATO officer who is independent of the matter in dispute. The facilitator should be involved in planning the conference and understand the purpose of the conference.
A facilitator is useful if there will be a number of people at the conference, the matter under discussion is complicated, or if previous contact between the parties has not been successful. The facilitator's role is to guide the parties through their discussion, making sure the participants focus on the purpose of their work together. Mediation is a process managed by a dispute resolution practitioner called a mediator. The mediator assists participants to present points of view and facts. They also assist participants to identify the issues in dispute, develop options and try to reach an agreement. The mediator does not give advice or make a decision on the facts of the dispute or its outcome. They may give advice on or choose how the process of mediation is conducted. Conciliation is a process managed by a dispute resolution practitioner called a conciliator. The conciliator assists participants to identify the issues in dispute, develop options and try to reach an agreement. A conciliator provides advice on the disputed matters and options for resolving them. They will not make a decision about how to resolve the dispute. A conciliator may have professional expertise in the subject matter in dispute.
Neutral evaluation is a process where participants present points of view and facts to a dispute resolution practitioner (an evaluator) who evaluates the key issues in dispute, and provides an opinion as to the most effective way to resolve it. The evaluator does not make a decision on the disputed facts.