I have been given permission by the sender of an email to publish it on this site. I will respond to it publicly in a day or so.

HERE IS THE TEXT OF THE EMAIL -

I am a Law student at the University of Western Australia currently studying Alternate Dispute Resolution.

Your website, particularly your free library, I have found very helpful to my studies and I found reading through your credo and policies quite inspiring as a young future lawyer.

I was wondering, if I could ask your opinion on a topic that would assist me greatly with an assignment, I would love to know where such a well-respected legal practitioner stood in respect to this argument.

“To be able to properly discharge their duty to their clients, legal practitioners must have thorough knowledge of mediation and other forms of alternative dispute resolution”

Why, in your opinion is it so important for Lawyers to have sound knowledge of different types of ADR, in particularly mediation? How does it affect their ability to properly discharge their duty to their clients?

I understand if you are too busy to reply to my email, I would imagine you would have an enormous workload. However, if you are able to find the time to reply, it would be greatly beneficial and very much appreciated.

Anonymous

Law Student University of Western Australia

These key principles were published in LEADR’s response to the rent Commonwealth NADRAC report on how to improve use of alternative dispute resolution in the civil justice system.

Key National Principles for Resolving Disputes

Social justice and inclusion is advanced by:

1. Encouraging people to take genuine steps to resolve or reduce their

disputes by themselves or by using an ADR process before considering

court or tribunal proceedings

2. Encouraging people using litigation to seek opportunities to use ADR

before and at all stages during the litigation process

3. Reserving courts and tribunals for disputes that cannot be resolved

otherwise or that involve a significant public interest issue

4. Developing and promoting standard definitions of dispute resolution

processes that clearly distinguish one process from another

5. Making information widely available that enables people to choose the

most suitable process to address their dispute

6. Explaining the ADR process and the role of the practitioner to people

using an ADR service

7. Ensuring that dispute resolution services and practitioners meet

standards that aim to avoid harm and maximize effectiveness

I think most would agree that what the public wants is not “Alternative Dispute Resolution” as the antidote to “Litigation” but Effective ADR.

There is a lot of ADR happening out there these days but in my opinion a lot of it is not that effective, and much of it is no more than the hosting of inter party settlement negotiations at a suitable location that can offer a large room for joint sessions and some separate rooms for the parties to break out and talk privately amongst themselves and their advisers.

The mediator, after giving the opening speech to the parties is then relegated to a mere relayer of information and offers between the two camps who after facing each other off around the joint session table for a short a time as possible, often saying nothing to each other and allowing their lawyers to give their opening speeches, scuttle off to their respective bunkers never to set eyes upon each other again for the remainder of the so-called mediation.

This style of mediation has regrettably become common place. If it produces a successful outcome it becomes part of the statistics about the success of mediation as a form of ADR. But in reality the success was the result of a hosted settlement conference, with the mediator being given the role of host.

Effective Settlement Negotiations are just that. They are not Effective ADR.

Effective Settlement Negotiations can be just as easily conducted between willing parties to a dispute without a mediator as they can be with a mediator.

So why do so many agree to pay up to $10,000 to a mediator simply to preside over their settlement conference?

Good question.

I have attended expensive medical negligence mediations and attended settlement conferences between a medical insurer and my client without a mediator and achieved similar good outcomes.

In essence, the key success factor is often not the “ADR” but effective negotiations being conducted with two willing parties who have both identified enough reasons to hold the settlement conference and who have a mutual desire to achieve an out of court settlement.

The fact is that most disputes are settled out of court, but in the “shadow of a court hearing”.

The question I pose here is this - why is it the case that so many people, engaged in dispute, have to engage in “litigation” for months and incur huge legal bills before they feel ready to engage in effective settlement negotiations?

Is it really necessary for the majority of disputes?

I intend to explore this interesting issue in subsequent blog posts but welcome comment from any readers of this post who feel they can offer some useful insights.

Cheers…..Chris Whitelaw