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 2013/3 Alternative Dispute Resolution (ADR) in ATO disputes.
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 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.
The types of dispute resolution processes available prior to litigation include:
- Negotiation and case conferencing
- Neutral evaluation
- Dispute resolution practitioners.
Negotiation and case conferencing do not need a dispute resolution practitioner.
Negotiation and 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
- may be face-to-face or by phone
- will often involve more than one tax officer, such as the tax officer(s) handling the dispute and any technical experts
- 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 and understand the purpose of the conference
- 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
- 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
- provides advice on the disputed matters and options for resolving them. A conciliator may have professional expertise in the subject matter in dispute.
They will not make a decision about how to resolve the 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.
Dispute resolution practitioners are selected to assist in our disputes because of their skills in managing dispute resolution processes like mediation, conciliation and neutral evaluation, and sometimes also because of their additional knowledge on the general issues in dispute such as tax or insolvency law.
The practitioner must be an independent, impartial and neutral person who is experienced in dispute resolution and competent to conduct the particular dispute resolution process agreed on by the parties.
Any costs of a dispute resolution process are usually shared equally between the parties. In exceptional situations, consideration will be given to the ATO meeting the costs of the dispute resolution practitioner, for example in employment law disputes with our staff.
The Attorney-General's Department's Access to justiceExternal Link web page provides links to organisations whose members are dispute resolution practitioners. Many of these organisations provide information about their members which helps to identifying a suitable practitioner for a particular dispute.
We have a panel of practitioners available to help resolve employee disputes.
For further information refer to Access to justiceExternal Link.Gives an overview of options for dispute resolution and describes each process.