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

Have you heard of “EndDispute”?

EndDispute is a good example of the corporate world looking after its own best interests. Commercial disputes are said to be on the rise and both governments and courts and corporate clients are more and more looking to alternatives to traditional litigation to reduce the cost of accessing and administering justice.

EndDispute was recently launched (early May 09) by former chief judge of the NSW Supreme Court Commercial Division Andrew Rogers QC along with ADR expert and academic Tania Sourdin and former Chair of Dibbs Barker Gosling, Peter Everett.

The founders have said in media reports that they decided to take the initiative and launch the new dispute resolution centre as a response to the massive legal costs generated in prolonged commercial litigation like the recent C7 case. It was also a response bred out of building frustration with court-annexed ADR that has a heavy focus on mediation and arbitration and lacks flexibility to cater to the needs of commerical disputes.

EndDispute will take on the full management of the ADR process OUTSIDE of the court processes and will address all the possible issues in a commerical dispute such as discovery, negotiation, neutral evaluation of discreet issues in the dispute, expert determination of some issues, mini-trials to dispose of some issues but relying only on documents submitted by the involved parties.

The founders have stated THE WHOLE CONCEPT IS FITTING THE METHOD AND THE FACILITATOR TO THE DISPUTE. They will seek to make more effective use of the whole range and scope of ADR technologies and resources.

This is a top end of town corporate response to the inadequacies and failings of the present court annexed ADR machinery. The current system has become too rigid and narrowly focused on both court appointed mediators and private mediators simply attempting to settle disputes by doing not much more than hosting an expensive settlement conference between the parties and their lawyers. Some ex judges have become very good at applying pressure to bring the parties to a final resolution but many fail to do justice to the full potential of skilfully and strategically applied ADR methodologies and simply preside over a hosted settlement conference acting as a shuttle service between the two camps after they bunker down in their respective rooms and commence the very linear and uncreative process of simply conveying messages to each other via the agency of the mediator.

There are far more and better ways that a skillful and proactive ADR practitioner can assist disputants to find a pathway to resolution of a dispute.

This National Dispute Resolver Blog will hopefully become a place where players in the justice system can openly debate and discuss what works and what does not work in different situations and sets of circumstances. Hopefully it will become a place where they can swap stories and provide valuable insights to each other. Why keeping winning strategies to yourself? Why not publish them here and by doing so help other ADR practitioners to lift their game and thereby deliver more value to their clients.

To Your Success!

Christopher Whitelaw