Some of you may be aware that the 36th Australian Legal Convention has just finished in Perth, WA.  A number of keynote speeches was given by the Federal Attorney General the Hon. Robert McClelland.

When speaking about “Access to Justice” the AG said this “The reality is that there are many situations where courts are the last place people will get the outcome they are looking for to resolve their issues. I think there is an increasing tendency for lawyers to acknowledge that the best thing they can do for their clients is keep them out of court. Often a full flow court case will be completely disproportionate to the issues in dispute.”

Mr. McClelland made mention of the Federal Justice System Amendment (Efficiency Measures) Bill (No 1) 2008 that is before Parliament but is not yet enacted into law. He expressed his hope that the bills will be passed into law by the end of 2009. The Bills contain important case management reforms to improve the operation of the Federal Court. He said that “the centre-piece of this is a new overarching obligation to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible.” The case management reforms will amongst other things permit the court to refer questions arising in proceedings to a referee for inquiry and report. The AG said “This is an important reform that will provide greater flexibility in obtaining expert assistance and will enable litigation to be managed more effectively.”

The AG appointed an Access to Justice Taskforce  to undertake a comprehensive examination of the federal civil justice system with a view to developing a more strategic approach to access to justice issues.

He made a number of key points that are relevance to considering a wider and more effective use of alternative dispute resolution mechanisms to resolve disputes -

• The cost of legal services is a major barrier to people accessing the justice system.
• People often have a hard time understanding “legal events”.
• The public perception that engaging a lawyer is too costly will be difficult to shift when many lawyers remain wedded to a time sheet costing that is based on time rather than outcomes. This system often rewards inefficiency over value.
• What is needed is a stronger emphasis on early intervention and dispute prevention.

He said “it is proposed that a triage process be developed where individual problems are assessed for the most appropriate means for dispute resolution. Every citizen has a right to their day in court, but we as practitioners have a responsibility to ensure that step is the last, not first, recourse. Where there are more cost effective and expeditious ways of resolving disputes these should be specifically pointed out.”

I have highlighted these chief points made by the Attorney General as they tie in very well with the points I have been highlighting myself since launching this blog about 6 weeks ago.

Indeed this is the very reason I launched this blog and am seeking to make it a convenient forum for a national discussion about HOW to make better use of ADR (alternative dispute resolution) skills, strategies and methodologies to improve the overall functioning of the civil justice system and to improve access to justice via ways that do not place the chief focus on the law and on legal classifications that most people just cannot relate to and which often steers them away from what are the REAL ISSUES for them.

Christopher Whitelaw

This is my last installment on what I learned listening to David Richbell at an advanced mediation workshop in Sydney.

David said that the mediator needs to keep asking the question “Why is there a gap that is blocking the parties getting to Yes and Settlement of the dispute”? The Mediator needs to keep exploring what each party needs to achieve to close the gap and open the door to settlement.

If the Mediator does not work out what each party needs then it is not possible for him to go to work to close the gap.

If both parties have come to the mediation with a genuine desire to do a deal then the mediator’s task is to flush out what has to happen to get each party to Yes on a deal each can live with. The mediator’s job is to coach each party towards Yes by identifying and dispelling misconceptions and invalid assumptions that are getting in the  way of forward movement towards a deal.

The Mediator can apply his skills to “re-frame” words used in any offer or counter offer to make it easier to extract a response that moves the a bit closer.

The Mediator can use techniques like hypotheticals and reality testing to create impetus when a party is blocked or stuck. She can assist in constructing offers that have a better chance of success.

The mantra to keep putting in each party’s mind is “What deal can you live with?” and contrasting that with the litigation alternative with all its uncertainties and risks.

In a future blog post I will be putting up a whole list of MEDIATOR CHALLENGES that have been put together by MATA (Mediation and Training Alternatives) and invite you to ADD TO THIS LIST drawing on your own experiences OR to post a COMMENT outlining any personal experience you have had with one of these Challenges (or some challenge not included in the List) and how you personally dealt with it.

Cheers

Christopher Whitelaw

This is the third installment reporting what I learned from David RIchbell at a recent advanced mediators workshop in Sydney.

PRIVATE SESSIONS AND TIMETABLING

David says that the “exploration” carried out in private sessions is a critical part of the “finding the deal” during a mediation.

Timetabling is important, especially if there are multi parties involved. David lets other parties know how much time he will be spending with each party through the day so that they can plan their own time effectively.

He says that many mediations will conclude in a day running from about 9 am to 6 pm. The objective is to try to materialize the deal by 4 pm so that the lawyers have time to get the agreement drawn up and documented by 6 pm.

Exploration is all about trying to understand what the parties need to reach a settlement that they can both live with. You are looking for their “drivers”.

The mediator knows that there is a big difference between NEEDS and WANTS. Disputes get settled by identifying each parties core needs.

When the exploration in private sessions has flushed out the core needs and the parties have moved from the Extreme polarized zone to the Reasonable Zone where a deal can be struck he then moves them back to OPEN SESSION so that they can take full ownership of the deal that is emerging.

When the deal is done and the lawyers have prepared the agreement for signature by the parties he usually concludes the mediation with some drinks so that the parties, who are probably feeling quite relieved to have ended their dispute, have the opportunity before they leave to try and repair their relationship.

In my next part of this series on David Richbell I will tell you what he said about “Closing the Gap”.

Again, I remind you, this blog is a forum for open discussion about the content of each blog post. My role is simply to get the issues out there and encourage discussion and sharing of experience for the benefit of all. Anyone with something interesting to say can take part in this.

Christopher Whitelaw