If you have been reading my blog posts since this blog opened about 8 weeks ago you know that  a constant theme has been that ADR (alternative dispute resolution) will nine times out of 10 offer better (i.e. more efficient and less expensive) methods to help people and businesses resolve their disputes than the combative and confrontational litigation model.

You will also see that I did an early review of the new ADR organization “End Dispute” backed by former Chief Judge of the Commercial Division of the Supreme Court Andrew Rodgers and by Justice Michael Kirby after he retired from the High Court - where End Dispute is the business world’s own response to the tortuous litigation model that drains their pockets and puts all the power and control in the hands of lawyers and judges.

So I was pleasantly surprised when, this morning, I unrolled my Saturday Financial Review, and saw the heading “Lawyers’ Cosy Club Threatened.”

Here is a summary of that articles written by James Eyers -

• EndDispute was officially launched by the Federal Attorney General in June 2009 at Parliament House in Sydney to, in his words “celebrate a new venture” and he lamented the the cost to taxpayers of providing well heeled litigants with courts to wage corporate battles.
• The AG said “In these difficult economic times it is critical to ensure that businesses can resolve disputes in quicker and more cost effective ways and ADR has a critical role to play here.”
• A trend is under way that may not be well received by the legal fraternity. They are now facing rivals who aim to undercut them by simplifying complexity for clients and helping them sort out their problems outside the court system and thereby avoiding its attendant financial and emotional stress.
• This alternative way of addressing and resolving disputes will help clients avoid their cases being managed by lawyers in a way that keeps them endlessly running on with the meter ticking relentlessly.
• Organizations like End Dispute will charge a management fee rather than charge on a time costed basis.
• Such organizations will focus on what are the “real issues” of the dispute not just the “legal issues” identified by lawyers.
• The new process of dispute resolution will focus on such methods and tools as “early neutral evaluation”, mini-trials and versions of the European civil justice hearings that focus only on documents with the assistance of a trained facilitator selected from a panel of experts.
• Many of the panel experts are non-lawyers - but they have training and background skills eminently suitable to help resolve disputes in their area of expertise.
• If organizations like End Dispute succeed it will be because lawyers are failing to efficiently manage litigation and failing to meet the expectations of both the clients and the efficient administration of justice.
• Justice Kirby has commented “The cardinal weakness of the legal system is that access to justice in the hands of lawyers is occasioned by the highly expensive technique of interposing talented lawyers between the decision-maker and the disputants.”
• Justice Rogers has said “Lawyers can often inflame a conflict.”  He singled out cross examination “which seeks to tear holes in opponents.” He said this was not conducive to ongoing business relationships.
• Justice Rogers said that 90% of commercial disputes turn on issues which are business issues, not legal issues.”
• ADR aims to shortcut the process of factual exploration that takes place in the litigation model. ADR seeks solutions that often have nothing to do with “legal principle”, which is what lawyers chiefly focus on. They look for solutions that will achieve a sensible commercial outcome.
• The article reports that Mary Walker, a barrister and ADR specialist who is Chair of the Law Council’s expert standing committee on ADR as saying “The arrival of companies like End Dispute should be a call to arms for lawyers.” She warns that lawyers who do not react to client demands for ADR will risk losing the work to non-lawyers ADR facilitators.
• Another commentator, Joanne Rees of the Ally Group, has said “Chasing every rabbit down every rabbit hole (as lawyers are prone to do) is usually overkill but is justified by lawyers as ‘risk handling’. This process, however, necessitates the client spending a very large amount of money on unnecessary costs.”

I recognized these problems in the conventional litigation system years ago and my personal response has been to move myself more and more into the field of ADR and this culminated in my establishing a service model that reflects this new ideology in practice - and this is fully explained on my website at www.chriswhitelaw.com.au.

I launched this blog, on its own separate domain and hosting to create a timely place and space for lawyers and non-lawyers, and all other stake holders in the civil justice system who have a genuine desire to be more responsive to client needs and expectations to have their say and to engage in open discussion about how to improve on what we currently have.

Christopher Whitelaw

www.chriswhitelaw.com.au

In 204 Natalie Gray wrote a piece in the Journal of Law and Medicine titled “Reforming the relationship between medicine and the law of tort.”  In that article she examined the fault-based adversarial system that we have as applied to medical negligence claims. She concluded “The adversarial system of medical negligence fails to satisfy the main aims of tort law, those being equitable compensation of plaintiffs, correction of mistakes and deterrence of negligence. Instead doctors experience litigation as a punishment and, in order to avoid exposure to the system, have resorted not to corrective or educational measures but to defensive medicine, a practice which the evidence indicates both decreases patient autonomy and increases iatrogenic injury. This is unacceptable and suggests that the government’s medical indemnity package has missed the point.”

Her article was her opportunity to suggest an alternative approach.

She pointed out that the adversarial approach reduced the chance of early resolution of allegations of poor medical practice and encouraged delay and increased costs.

She also pointed out another side effect - “the impact of being sued may be out of all proportion to the alleged mistake, or indeed, the adverse outcome.”

Another relevant observation she made - “Defensive medicine impacts negatively on the doctor-patient relationship.”

She came to the conclusion that the creation of a non-adversarial method of awarding compensation to patients, coupled with a non-threatening environment in which doctors may analyse the shortfalls in any aspect of their medical practice would hopefully lead to a higher satisfaction among injured patients and higher -quality overall patient care.

By developing a structure in which doctors can facilitate the awarding of compensation to deserving patients, some of the public mistrust of the medical profession may be dissipated.

Similarly, by sparing doctors the indignity of having their patients assert that they breached their “standard of care”, rather than just having made a mistake, doctors may once again learn to trust their patients.

She advocates that all stake holders would be better off if a system that generates antagonism and mistrust was replaced with a new system that is based on co-operation.

What are your thoughts on this?

How can the different perspectives and interests of patient, doctor and medical indemnity insurer be reconciled and accommodated in a way that would allow the majority of disputes to be handled a way that removed the causes of antagonism and mutual distrust?

How can ADR strategies be used earlier and in more effective ways to promote early resolution and settlement  and spare all concerned from having to engage in pre-trial litigation process first and incur substantial legal costs first before they open the door to ADR processes?

Your insights or perspectives on this would be highly appreciated.

AUSTRALIAN DISPUTE RESOLVER

Moderator: Christopher Whitelaw