An important focus point in any consideration of any civil law system and its capacity to effectively assist people to manage and resolve their disputes is the topic of “litigation culture” and to juxtapose and consider alongside it any other cultures that might offer a better process and better outcomes to those unfortunate enough to get caught up in a dispute or who they must crystallize a dispute in order to protect or assert certain civil rights and/or seek redress for some grievance or some some public interest cause.

A special focus of this national blog is to stimulate debate and discussion about putting up the alternative culture that resides in ADR philosophy and in ADR strategies and keep contrasting it with the long established and still overly entrenched litigation culture. We need to keep seeking the best balance between a proper continuing role for the prevailing legal culture  and the ‘adversarial mind-set’ that tends to favour litigation as the preferred model to manage and resolve disputes and non-adversarial methods and approaches that aim to bring disputants together and assist them in finding their own solutions and resolutions to their disputes instead of abdicating that personal responsibility and maturity to a judge or tribunal. 

At the heart of this lies such things as traditions, cultures, mind-sets, vested interests (or perceived vested interests), training, education, values, beliefs, politics and so on. 

We need to get all of these elements out in the open and being discussed and debated by all stakeholders and players in the game of dispute resolution, so that we can keep examining it from all possible angles with a common desire and intent to find better ways to resolve all manner of disputes more quickly and with less expense but with more sensitivity and understanding and accommodation of the needs and interests of those engaged in the dispute. 

The challenge of striking this ideal balance is big. The competing interests are many. The viewpoints are diverse and some are hard to reconcile. But one thing is hard to argue against - an ongoing discussion and conversation between ALL THE PLAYERS in what we call our civil justice system. 

I will be expressing some of my own views and ideas in future blog posts and I hope I will be able to attract some interest and participation from others whose insights and experience will substantially broaden and deepen the discussion.

Chris Whitelaw

An article appeared in the Legal Affairs Section of the Australian Financial Review in January 2009 that bore the headline “Barristers judged to be behaving badly”.  The article reported on something said by Victorian Supreme Court judge David Byrne at a judges conference to the effect that many barristers pay lip service to the notion that they should be doing more to resolve complex disputes out of court. It was also reported that High Court Justice Kenneth Hayne, at the same conference, said that the way in which the adversarial system was being administered was one of the chief difficulties facing the proper administration of civil litigation. He said one of the most important questions for everyone to be asking throughout the dispute is “Why?” with respect to the process being selected to best deal with the dispute. Lawyers were criticized for paying lip service to the notion that they have an important role to play outside of the traditional one of presenting evidence and legal argument inside a court room and attacking the opponent’s case in every way possible.

So - what do you think? Do you agree or disagree? Are too many lawyers still guilty of this indictment that they only pay lip service to their duty and obligation to assist their clients to resolve their disputes in non-litigious ways? Are they still too wedded to the legal culture of litigation rather than to a different “ADR Culture” that demands that they think outside the conventional litigation box and work harder to help their clients find solutions that will help keep them away from litigation and away from the courts?

I open this question for serious examination and discussion. We need to hear from as many participants in the civil disputes arena as possible to get a true fix on whether lawyers are doing enough in this department, and if they aren’t, what can be done to accelerate their shift to a different culture that is more attuned to the demands of the public and the demands of the civil justice system.

Christopher J Whitelaw

In the January 8th 2009 edition of BRW Georgina Dent wrote an article called “Flight Paths” in the Law Section of that magazine. The heading was “Rather than rushing to court, smart companies find ways to settle disputes that leave commercial relationships intact.”

The main points made in the article -

• Businesses can find themselves entrapped in the cost, delay and bother of a courtroom battle;
• Litigation work is growing as the number of disputes rises;
• Parties to the dispute need to be able to properly assess all of their options for dispute resolution;
• Businesses in dispute with each other need to carefully consider whether or not they stand to benefit more by resolving the dispute amicably out of court so that they can consummate further lucrative deals to their mutual benefit;
• Litigation is often not the best option to resolve the dispute;
• Litigation should be seen as the option of last resort, when all else fails;
• ADR options often do not take up as much time, usually are less expensive and keep the door open to an ongoing commercial relationship between the parties;
• With ADR everything remains confidential;
• In ADR the parties can choose the expert they want to help them resolve the dispute;
• Litigation often delivers a poor result overall even to the winning party.

Those of us who practice in ADR have heard this said many times before. But how effectively are we managing to communicate this to our target audience - i.e. to other legal practitioners who are the first ones to take instructions in a new dispute and therefore have maximum capacity to influence the dispute resolution pathway selected by the client; to the public at large; to the business community?

Why is it that when the known and repeated statistic is that 95% of those matters that are channelled into the litigation track eventually settle prior to a final hearing we still see the majority of those disputes follow the conventional litigation pathway rather than be channelled early on into ADR processes that could feasibly save the warring parties lots of money and wasted time tied up in a court case management requirements and timetables and attending to the frequent demands of their lawyers to ensure that they can comply with those timetables?

Why is it that many commercial clients are not embracing ADR early on in a commercial dispute to try and nip it in the bud so that they can get back to business as usual and possibly even do so with a salvaged and possibly renewed and better relationship with the other party to the dispute?

Are we failing as a profession to properly communicate the potential benefits of ADR to our clients? Are many of us still just giving it lip service as something we know we are legally bound to do before we nudge our clients into the more familiar (and more lucrative?) litigation track?

Do many litigation lawyers and their clients have a jaundiced view of court-annexed ADR as being ineffective and simply adding to the overall cost and length of the dispute?

Please share your views based on your own experience and observations. This Blog is open to anyone who has been involved in (or is currently involved in) a dispute and the management of its resolution. This Blog is not just for lawyers or ADR practitioners. The purpose of this Blog is to engage people (anyone) with something useful or constructive to say about the operation of our civil justice system and how to improve it so that it better meets the needs and demands of people caught up in a dispute.

Lets get a national discussion going right here, out in the open, every day, every month and every year so that ALL THE ISSUES are identified and ALL THE VIEWPOINTS are expressed.

Cheers,

Christopher J Whitelaw