My key message is that those engaged in the practice of alternative dispute resolution can benefit from learning the art of lateral thinking.

Edward de Bono is one of the world’s most celebrated exponents and teachers of lateral thinking. So, to get my point across here, I am going to draw on his writings to help me expound some key principles.

Here they are -

• “Usual Thinking” is based on analysis and judgment. However, when trying to resolve conflicts we often need to design a way forward rather than judge a way forward influenced by our personal beliefs and conditioning.

• Conflicts are often best resolved using creative thinking strategies and techniques. This means shedding our perceptions and conceptions and cultivating an open mind to seek fresh possibilities.

• Potential barriers to this will usually come from egos, emotions and adversarial and competitive behaviour.

• A skilled dispute resolver will try to find ways to get the players to contribute to an idea or proposal on the table using collaborative and parallel thinking.

• Complexity needs to be replaced by simplicity and effectiveness in the thinking processes applied.

• Seeking solutions is a collective exercise, and strategies like de Bono’s ’6 Hats’ provides a structure for arriving at decisions by harnessing the focused thinking of the participants.

• The skill of the dispute resolver is to get people working co-operatively, thinking in parallel on an idea or proposal – not in opposition or in a confrontational way.

• Lateral Thinking tools and techniques are designed to find alternative solutions and options for settlement that bypasses the more obvious choices and approaches to the presenting problems and issues.

• New angles will start to emerge that may at first seem illogical, but if the participants follow through with their thinking process, an “aha” moment may be just around the corner.

• Lateral thinking strategies are used to help break people out of their heavily conditioned responses that limit the options and possibilities for settlement.

• The dispute resolver needs to create an environment that will foster better ways for the participants to interact, in order to encourage their interaction.

• They move the players away from being polarized and stuck in their positions to being willing and eager to share knowledge and ideas with a common goal to find solutions that will work for both of them.

• The dispute resolver needs to be astute and alert to the need to redress gaps in the participants own knowledge and expertise by making use of neutral experts to fill those gaps.

• There is a need to unfreeze the brain from being too logical and stuck in linear conditioned and conventional ways of thinking. This is done by using techniques that will allow the participants to view the issue from new angles and perspectives.

Regrettably for those in dispute who trot off to their nearest lawyer, most lawyers are not skilled in creative and lateral thinking.

Taking the time to find an expert in alternative dispute resolution who is skilled in the art of creative and lateral thinking, at the inception of the dispute, could well save the disputants much valuable time, stress, and heaps of money.

Lawyers have a useful role to play, but quite often their early involvement in the life of a dispute does more to exacerbate it and ripen it for litigation than to foster its quick, just and relatively inexpensive resolution.

Until my next post,

Wishing you a Merry Christmas and a Happy New Year in 2012.

Christopher Whitelaw

Barrister and Mediator

Commercial Disputes Management Centre

www.chriswhitelaw.com.au

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This just appeared in the Adelaide Advertiser on 19 July 2011.

Title: Access to justice costing us more
Author: JULIAN SWALLOW
Source: The Advertiser
Circulation: 176517
Page: 17
Date: 19-Jul-11
INDIVIDUALS and companies must pay up to an additional $1200 to launch legal proceedings under a new state
government measure opponents claim will affect the public’s ability to access justice.
The increase, a State Budget measure introduced on July 1, means companies with more than 20 employees
now pay $3000 to issue a summons through the Supreme Court, while individuals pay $2126 – up from a flat fee
of $1797 last financial year.
It makes South Australia the most expensive state in the country in which to issue a summons, and compares to
$2142 for a company in NSW, $1529.20 in Western Australia, $1050 in Queensland, and a flat fee of $767.40
for both companies and individuals in Victoria.
Australian Lawyers Alliance state president Tony Kerin yesterday expressed concern the fee hikes could affect
people’s ability to access justice.
“The higher the fees, the greater the hurdle that South Australian plaintiffs have to jump through to obtain
justice,” he said.
Law Society President Ralph Bonig said it was the first time the filing fee had been split between individuals and
companies, and was part of a pattern of government-mandated legal fee increases aimed at raising revenue
rather than upgrading court infrastructure.
A spokesman for Acting Attorney-General Patrick Conlon yesterday said the hike was part of steps to ensure a
strong Budget position.

If this new law is passed, just the cost to file a claim in court will be close to $3,000.

Disputes that are channeled early to an alternative dispute resolution specialist can often be totally resolved and disposed of for under $5000.

Based on this stark comparison, shouldn’t everyone be focused on how to maximize the use of ADR in the justice system?

Christopher Whitelaw

Barrister and Mediator

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This is Part 6 to my 8 Part Series on ADR and Access to Justice.

In my last post (Part 5) I addressed Questions (a), (b) and (c) below.

a. How long does this take?

b. What does the “ADR protocol” for tackling the dispute include?

c. What is in the ADR toolbox that makes a successful outcome a high probability?

In Part 6 I will address the following question -

WHAT DOES IT ALL COST?

The best way to answer this is to put up two entirely different systems, side by side, and compare them.

The first system is the conventional system. The conventional system is the one that is most prevalent out there in the market and the one that most people engaged in a dispute seeking dispute resolution assistance will encounter.

The second system is the alternative and fairer system, which is the one I adopt and recommend as the preferred system. Why the preferred system? Because I have no doubt at all that my system is far more equitable and reflects what most potential clients want.

This begs another question – If my system is more equitable and is what the client really wants, then why isn’t it the conventional and prevalent system?

The answer can be broken into a number of parts -

1. Lawyers dominate a huge section of the “market” for these services. They dominate it because a great number of them have become qualified as mediators (and they tend to refer to themselves as “mediator”, rather than an expert is alternative dispute resolution strategies and methodologies) and they market themselves as mediators in a way that nicely dovetails with the mainstream litigation model for dealing with disputes. They tend not to market ADR services in a way that totally distances and differentiates those services from mainstream litigation. They market “mediation” services in tandem with “litigation” services. This is because most lawyers take the view that you first need to litigate with the opponent to demonstrate your client’s superior strength BEFORE going to mediation, so that they can try to leverage that demonstration of superior strength to bargain for a better negotiated outcome at mediation. People who represent themselves as ADR specialists in the market don’t usually adopt that approach, as they know from experience that many disputes can be effectively resolved, and resolved more quickly and more cheaply, by NOT focusing on the law, legal issues and the strengths and weaknesses of each party’s evidence to support their legal causes of action. They know that in the majority of cases the parties can find their own good reasons, reasons that make good sense to them, to resolve their disputes without any need to file legal claims and defenses in court.

2. Lawyers are wedded to a time based method to charge for their services. Their preference is the charge by the hour or by the half day or full day of their involvement. Lawyer mediators apply this same method to the mediation process. However, there is one key point of difference. In the litigation process, the losing party is usually ordered to pay the costs of the winner. When parties elect to or are sent to mediation by court order, the parties share the cost of the mediation process in equal parts. Nevertheless, it is an unwelcome added cost burden if mediation fails to resolve the dispute and the parties have to return to the litigation process to achieve finality.  In an average sort of case the total cost of the mediation process can easily be $5000 to $20,000 (or more), and so for those with tight budgets it is a painful pill to swallow to have to fork out $2,500 to $10,000 for no apparent gain or benefit.

3. Mediators engaged by lawyers acting the the parties in the dispute will require their fees to be paid irrespective of the outcome of the mediation.

4. Lawyers acting for parties to the dispute will require their fees to be paid irrespective of the outcome of a mediation.

This is the “conventional system”.

In the conventional system, mediation is simply seen as a pit-stop on the way to the final destination – the court hearing. If the dispute is resolved at mediation, then the parties avoid the court hearing; if it is not successful then they make final preparation for war and go to the hearing.

In the conventional system, lawyers and mediators make  hay all the way along the continuum from the taking of initial instructions until final resolution of the dispute either via mediation or via a court hearing.

In the conventional system, the client pays for everything, win or lose, along the entire continuum of legal and mediation services.

The financial burden can be considerable, hugely stressful and, in some cases, totally devastating.

If, at any point, the client runs short of or out of money, the services are stopped, and if the client is not able to remedy the situation fast enough, the client is left abandoned and at the mercy of an opponent that has deeper pockets.

How is the alternative system fairer?

It adopts an entirely different approach to the conventional system.

Here are the mains elements of it -

• It first focuses on properly and fully understanding the nature and background of the dispute and those involved in it;
• It moves quickly to bringing the parties (and their lawyers if they have engaged lawyers) together in a collaborate setting to tone down the dispute and avoid its further escalation;
• It then seeks to identify the best approach and best strategies to apply to the dispute to permit quicker resolution and finality, without large expense, and with all effort made to preserve prior beneficial relationships rather than destroy them;
• It puts center stage the importance of each party making an open and genuine commitment to work together, with the assistance of the ADR specialist, and with the assistance of their lawyers (if they are legally represented) to identify possibilities and options for final resolution of the dispute that they can live with, that will endure and that will not close the door on the parties continuing to do business together in the future;
• It focuses on commercial realities and commercial interests and on the issues identified by each party as being important to them rather than on the law, legal causes of action and who has the stronger case to take to court.

In this environment, and in this set of circumstances, the alternative way is to align with the parties genuine commitment to find their own solution without resort to litigation and support it by declining to charge a fee for service unless and until a successful outcome is achieved.

In my experience of working this way, when you combine the elements of the parties own genuine commitment to the process with the skills and ability of a a highly trained ADR specialist, a good outcome is almost inevitable, and in the small number of cases where a good outcome is not achieved I am more than happy to sacrifice my fee to a good cause.

With this approach, everyone feels that they are being treated equally, and we either all win together, or we finish up knowing that we gave it our best shot but that some of the issues were irreconcilable and will need to be determined by an external umpire.

Any fear by an ADR practitioner or legal practitioner that to adopt this alternative model would lead to financial ruin for them should be dispelled as unfounded and misconceived.

The focus should rather be on creating the right set of  circumstances to manage and resolve the dispute, the total genuine commitment of all the players to the process and on the skills of the ADR practitioner to facilitate and manage the process.

As usual, where the skilled practitioner is willing to accept the risk of “no win no fee” terms of engagement, where success is achieved the remuneration then payable by the parties to the practitioner should be considerably higher than the practitioner’s usual fee rates when charging in the normal manner.

An ADR practice constructed along these lines will survive and thrive even if there is the occasional dispute where successful resolution fails to eventuate.

In PART 7 I will address the interesting issue of how LATERAL THINKING is a key aspect of ADR methodology to resolve disputes and contrast this with the LINEAR approach that is all too common in the Litigation model.

Until then,
Christopher Whitelaw

Barrister and Mediator

The Dispute Management Centre

02 94208213

cwhitelaw@chriswhitelaw.com.au

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