On March 29th I was privileged to co-present to a group of lawyers and mediators at the New South Wales State Legal Conference in Sydney. I co-presented with two building experts - Howard Ryan and George Zakos. I will upload the papers and power point slides to my ADR site - www.chriswhitelaw.com.au where you can download them for free.
During the three and half hours of our session we talked about a wide range of issues for alternative dispute resolution in the building and construction industry.
Amongst the attendees were a wide range of people engaged in this field. One of the attendees worked for one of the EXPERT WITNESS service providers to the legal profession. She made the observation that a high percentage of expert witnesses express extreme frustration and disappointment with conventional litigation practice and procedure and lawyers litigation mindset and practices that keep experts polarized. They repeatedly express the view that the dispute could be resolved much quicker and less expensively if the parties would foster inter-expert dialogue from a very early stage of the dispute. They feel confident that if just this single change of approach was embraced by the legal profession it would lead to many more disputes being resolved early on and before massive legal and expert witness bills are run up.
I totally agree and support this sentiment coming from experts engaged in dispute resolution. I have been advocating this change of approach for years now.
It begs the question - WHY do so many in the legal profession rebuff this common sense attitude and approach? Why are they so intractable in adopting an approach that inevitably fosters conflict, opposition, alienation of the parties to the dispute, alienation of their respective experts, huge cost in building up evidence and boxing up all the “issues” in the case as “legal issues”?
Why? Because they are “Lawyers” applying a lawyers perception and dispute resolution blueprint to resolution of the dispute.
The Result? Real, organic and dynamic “ADR” strategies are excluded and are given no chance to being applied from the very outset of the dispute. The conventional lawyer “mindset” prevents dynamic ADR tools and strategies from being considered from the start and brought into play. The only “ADR” that the typical conventional legal mindset is able to cater to is what has become a mutant stream of ADR bred out of the court system itself - what I have been calling nothing more than hosted settlement conferences usually arranged as a last pre-hearing step before the court decides to list the dispute for hearing before a judge.
Why is this happening? Why are lawyers not doing more to embrace the range and depth of ADR philosophy and capability and applying that to every single dispute from the very start? Is it all due to a lack of education and awareness or is it a deliberate refusal to open the door to new and better ways?
I am not alone in raising these questions. Not at all. This question is being raised by senior judges, ex-judges, attorneys general, academics and politicians. They are concerned that the conventional litigation approach, still adopted and applied by the majority of the legal profession who simply consider “ADR” to be an adjunct to the litigation approach they endorse and foster, and who simply think of ADR as no more than the “hosted settlement conference” as the penultimate step to the final hearing before a judge. The “host” is of course the selected or appointed mediator who is paid $3,000 to $5000 a day to act as host.
I discuss the “causation” of the current paradigm in more detail in my power point “Effective ADR” available as a free download from my website.
Christopher J Whitelaw
Barrister and Mediator, Sydney.
www.chriswhitelaw.com.au
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